B-5147, AUGUST 9, 1939, 19 COMP. GEN. 171

B-5147: Aug 9, 1939

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WAS ENACTED FOR THE BENEFIT AND PROTECTION OF THE GOVERNMENT AND MAY BE WAIVED BY THE UNITED STATES IN A PROPER CASE. AN ASSIGNMENT WILL NOT BE RECOGNIZED WHERE IT DOES NOT MEET THE CONDITIONS PRESCRIBED IN THE STATUTE. EVEN THOUGH THE GOVERNMENT MIGHT HAVE A GOOD ACQUITTANCE THEREUNDER FOR PAYMENTS MADE. WHERE THE ASSIGNMENT IS SOLELY FOR THE BENEFIT AND CONVENIENCE OF THE ASSIGNOR. FOR AN OBJECT OR PURPOSE IN WHICH THE UNITED STATES HAS NO CONCERN AND WHERE THERE ARE NO CIRCUMSTANCES MAKING THE ASSIGNMENT NECESSARY. 1939: I HAVE YOU LETTER OF JULY 21. WAS THE ATTORNEY OF RECORD IN CERTAIN CASES INVOLVING WAR RISK INSURANCE. IN EACH ONE OF THE CASES AN ATTORNEY'S FEE WAS ALLOWED BY THE COURT.

B-5147, AUGUST 9, 1939, 19 COMP. GEN. 171

CLAIMS - AGAINST THE UNITED STATES - NONRECOGNITION OF ASSIGNMENTS WHILE SECTION 3477, REVISED STATUTES, REGARDING THE MANNER OF MAKING, AND OTHER REQUIREMENTS IN CONNECTION WITH, ASSIGNMENTS OF CLAIMS AGAINST THE UNITED STATES, WAS ENACTED FOR THE BENEFIT AND PROTECTION OF THE GOVERNMENT AND MAY BE WAIVED BY THE UNITED STATES IN A PROPER CASE, AN ASSIGNMENT WILL NOT BE RECOGNIZED WHERE IT DOES NOT MEET THE CONDITIONS PRESCRIBED IN THE STATUTE, EVEN THOUGH THE GOVERNMENT MIGHT HAVE A GOOD ACQUITTANCE THEREUNDER FOR PAYMENTS MADE, WHERE THE ASSIGNMENT IS SOLELY FOR THE BENEFIT AND CONVENIENCE OF THE ASSIGNOR, FOR AN OBJECT OR PURPOSE IN WHICH THE UNITED STATES HAS NO CONCERN AND WHERE THERE ARE NO CIRCUMSTANCES MAKING THE ASSIGNMENT NECESSARY, DESIRABLE, OR CONVENIENT FROM THE STANDPOINT OF THE GOVERNMENT, PARTICULARLY WHERE THE ASSIGNMENT OF FUTURE PAYMENTS OF THE ATTORNEY'S FEES UNDER COURT VETERANS' INSURANCE JUDGMENTS MIGHT POSSIBLY RESULT IN CONFUSION, COMPLICATION, OR DOUBT IN THE EVENT OF DEATH OF THE ATTORNEY, THE TRUSTEE, OR THE BENEFICIARY. COMP. GEN. 4, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 9, 1939:

I HAVE YOU LETTER OF JULY 21, 1939, AS FOLLOWS:

MR. VOLNEY P. MOONEY, JR., OF LOS ANGELES, CALIFORNIA, WAS THE ATTORNEY OF RECORD IN CERTAIN CASES INVOLVING WAR RISK INSURANCE, HEREINAFTER LISTED, IN WHICH ON BEHALF OF HIS RESPECTIVE CLIENTS THIS ATTORNEY HAS FILED SUIT AND PREVAILED AGAINST THE UNITED STATES GOVERNMENT. IN EACH ONE OF THE CASES AN ATTORNEY'S FEE WAS ALLOWED BY THE COURT. MR. MOONEY IN CORRESPONDENCE WITH THE VETERANS' ADMINISTRATION HAS STATED THAT HE WISHED IF POSSIBLE TO MAKE ARRANGEMENTS BY WHICH THE REMAINING FEE INSTALLMENTS UNDER SAID JUDGMENTS MAY GO INTO A FUND FOR THE BENEFIT OF HIS MINOR DAUGHTER TO BE ADMINISTERED BY HER MOTHER AS TRUSTEE. AFTER AN EXCHANGE OF CORRESPONDENCE THE ATTORNEY WAS ADVISED BY THE VETERANS' ADMINISTRATION THAT HE SHOULD EXECUTE AND DELIVER TO THE PROPOSED TRUSTEE SUCH AN INSTRUMENT AS HE DEEMED APPROPRIATE TO EFFECTUATE HIS INTENT, AND FORWARD AN EXECUTED DUPLICATE THEREOF TO THE VETERANS' ADMINISTRATION REQUESTING THAT PAYMENT BE MADE ACCORDINGLY. CARE WAS TAKEN NOT TO PASS UPON THE ACCEPTABILITY OF THIS INSTRUMENT UNLESS AND UNTIL IT HAD BEEN EXECUTED AND PRESENTED FOR CONSIDERATION AND STUDY. THE SUGGESTION WAS MADE THAT IN ANY DRAFT THERE SHOULD BE INSERTED A PROVISION TO HOLD THE UNITED STATES FREE OF ANY LIABILITY FOR ANY PAYMENTS MADE THEREUNDER.

THE DOCUMENTS SUBMITTED BY MR. MOONEY IN RESPONSE TO THE FOREGOING REQUEST ARE HERE QUOTED:

" DECLARATION OF TRUST

" ADDENDA I

"KNOW ALL MEN BY THESE PRESENTS:

THAT MARY L. MOONEY OF THE CITY OF AND COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, HEREINAFTER CALLED " TRUSTEE, DOES HEREBY ADMIT, CERTIFY, AND DECLARE THAT SHE IS THE TRUSTEE OF, IN, AND TO THAT CERTAIN DEED OF TRUST EXECUTED NOVEMBER 11TH, 1936, MARY JOAN MOONEY, BENEFICIARY.

"THAT PURSUANT TO ARTICLE III OF SAID TRUST, THE TRUSTOR, VOLNEY P. MOONEY, JR., RESERVED UNTO HIMSELF THE RIGHT TO ADD TO AND INCREASE THE PRINCIPAL OF SAID TRUST FROM TIME TO TIME AT HIS OPTION, SAID ADDITIONS AND INCREASES TO BE GOVERNED IN ALL WAYS BY THE CONDITIONS OF THE ORIGINAL DECLARATION OF TRUST.

"THAT THE TRUSTOR ABOVE NAMED HAS THE ST DAY OF MAY 1939, EXERCISED SUCH RIGHT AND MARY L. MOONEY AS TRUSTEE DOES HEREBY CERTIFY, ADMIT, AND DECLARE THAT SHE HAS RECEIVED AND ACCEPTED FROM VOLNEY P. MOONEY, JR., AN ASSIGNMENT CONVEYING, GRANTING, AND ASSIGNING TO HER IN TRUST AND FOR THE EXPRESS USES AND UNDER THE SAME TERMS AS THE ORIGINAL DEED OF TRUST HEREINABOVE REFERRED TO, THE FOLLOWING DESCRIBED PROPERTIES:

"ALL THAT CERTAIN INTEREST THAT TRUSTOR NOW HAS IN AND TO THOSE PARTICULAR INSURANCE POLICIES ISSUED BY THE UNITED STATES GOVERNMENT INSURING THE LIVES OF THE HEREINAFTER NAMED BENEFICIARIES. FOR THE PURPOSES OF CLARITY, SUCH INTEREST OF TRUSTOR DEVELOPS AND EXISTS BY VIRTUE OF AND BY REASON OF HIS SERVING AS LEGAL COUNSEL FOR SUCH BENEFICIARIES IN THE PROSECUTION OF THEIR LEGAL RIGHTS BASED ON SAID POLICIES, THE AMOUNTS TO BE PAID INTO SAID TRUST REPRESENTING THAT TEN PERCENTUM ATTORNEYS FEES THE RUNNING AND CONTINUING INTEREST IN AND TO SAID POLICIES--- THAT SHE WILL RECEIVE THESE PAYMENTS IN MONTHLY INSTALLMENTS HENCEFORTH UNTIL TERMINATED BY LAW OR OTHERWISE:

CHART VETERANS' AMOUNT ADMINISTRATION

VETERAN INSURED MONTHLY NO.

PAYMENT 849626 FRED P. TUCKER----------------- -------- $5.05 124047 MYRON J. CLIFFORD----------------------- 4.41 600641 ROBERT BJORK--------- ------------------- 2.87 230442 JOHN O. BARTON-------------------------- 5.75 258202 WALTER WOODALL-------------------------- 2.87 258679 JOHN J. TUSO---------------------------- 5.37 766021 ORV GARMAN------------------- ----------- 5.75 258967 ERNEST L. PATTEN------------------------ 5.75 223827 SAMUEL LICURSI-------------------------- 5.75 228782 SAMUEL CRYSTAL -------------------------- 5.75 262885 FRED K. TINDER--------------------- ----- .84 262886 -----DO-----------------------------------1.93 218676 JAMES I. PETERS------------------------- 2.87 160541 THOS. L. O-BRIEN----- ------------------- 2.28

"DATED THIS ST DAY OF MAY, 1939. "/S) MARY L. MOONEY.

" MARY L. MOONEY, TRUSTEE.

" I HEREBY COVENANT THAT THE UNITED STATES OF AMERICA SHALL BE HELD FREE OF LIABILITY AND INDEMNIFIED AGAINST ALL LIABILITY ARISING BY REASON OF PAYMENTS TO THE ASSIGNEE AS IN THIS INSTRUMENT PROVIDED, AND IN THE EVENT OF ANY FUTURE CLAIM BY, THROUGH, OR UNDER ME, OR BY ANY CREDITOR OR OTHER PERSON AGAINST ME, THIS COVENANT SHALL BE A COMPLETE DEFENSE THERETO TO THE EXTENT THAT PAYMENTS SHALL BE MADE TO THE ASSIGNEE HEREIN AND THE UNITED STATES OF AMERICA SHALL BE ENTITLED TO DEFEND, SET-OFF, OR COUNTERCLAIM IN ANY SUCH SUIT IN ORDER TO MAKE EFFECTIVE THE PROTECTION TO THE UNITED STATES OF AMERICA CONTEMPLATED THEREBY. "/S) VOLNEY P. MOONEY, JR.

" VOLNEY P. MOONEY, JR.,

" TRUSTOR AND ASSIGNOR.

"ASSIGNMENT

"KNOW ALL MEN BY THESE PRESENTS:

"THAT I, VOLNEY P. MOONEY, JR., OF LOS ANGELES, CALIFORNIA, IN CONSIDERATION OF THE TERMS AND CONDITIONS OF THAT CERTAIN DECLARATION OF TRUST MADE AND EXECUTED NOVEMBER 11TH, 1936, WITH MYSELF AS TRUSTOR, MARY L. MOONEY, AS TRUSTEE, AND MARY JOAN MOONEY, AS BENEFICIARY, DO HEREBY CONVEY, ASSIGN, TRANSFER, AND SET OVER TO MARY L. MOONEY IN HER TRUSTEE'S CAPACITY ALL OF MY RIGHT, TITLE, AND INTEREST IN AND TO THOSE CERTAIN MONTHLY PAYMENTS OF INSURANCE, DUE ME AND PAYABLE TO ME BY VIRTUE OF THE FOLLOWING POLICIES OF INSURANCE AND THE JUDGMENTS THEREON THAT I MAY NOW OR MAY HEREAFTER HAVE, TOGETHER WITH ALL SUMS WHICH ARE NOW OR MAY AT ANY TIME HEREAFTER BECOME DUE BY VIRTUE OF SUCH COURT JUDGMENTS WHICH ALLOTTED TO ME A TEN PERCENTUM INTEREST AS ATTORNEY FEES: VETERAN'S AMOUNT ADMINISTRATION

VETERAN INSURED MONTHLY NO.

PAYMENT 849626 FRED P. TUCKER---------------------- --- $5.05 124047 MYRON J. CLIFFORD----------------------- 4.41 600641 ROBERT BJORK--------- ------------------- 2.87 230442 JOHN O. BARTON-------------------------- 5.75 258202 WALTER WOODALL-------------------------- 2.87 258679 JOHN J. TUSO---------------------------- 5.37 766021 ORV GARMAN------------------- ----------- 5.75 258967 ERNEST L. PATTEN------------------------ 5.75223827 SAMUEL LICURSI-------------------------- 5.75 228782 SAMUEL CRYSTAL-------------------------- 5.75 262885 FRED K. TINDER-------------- ------------ .84 262886 -----DO----------------------------------- 1.93 218676 JAMES I. PETERS------------------------- 2.87 160541 THOS. L. O- BRIEN------------------------ 2.28

"IN WITNESS WHEREOF, I HAVE HEREUNTO AFFIXED MY HAND AND SEAL THIS ST DAY OF MAY 1939.

(S) VOLNEY P. MONEY JR.

VOLNEY P. MOONEY,

ASSIGNOR.'

THE NUMBERS APPEARING BEFORE THE NAMES OF THE VETERANS LISTED ARE INSURANCE NUMBERS OF THE RESPECTIVE VETERANS. THE CLAIM NUMBERS, HOWEVER, ARE GIVEN IN THE FOLLOWING LIST:

CHART TUCKER, FRED P-----------C-3,445PATTERN, ERNEST L------- C 1,490,834 CLIFFORD, MYRON J----C-1,391,657 LICURSI, SAMUEL--------- C 1,269,134 BJORK, ROBERT--------- C-276,587 CRYSTAL, SAMUEL----------- C- 246,000 BARTON, JOHN O-------- C-224,631 TINDER, FRED K------------ C- 296,997 WOODALL, WALTER------- C-484,061 TINDER, FRED K------------ C- 296,997 TUSO, JOHN J---------- C-188,612 PETERS, JAMES I----------- C- 306,513 GARMAN, ORV----------- C-460-401 O-BRIEN, THOS. L---------- C- 427,242

ARTICLE III OF THE DECLARATION OF TRUST, REFERRED TO IN THE FOREGOING INSTRUMENT, READS:

"SAID TRUSTEE DOES HEREBY CONSENT, AS ONE OF THE TERMS OF THIS TRUST, TO THE RIGHT AND PRIVILEGE RESERVED IN SAID TRUSTOR AT ANY TIME, OR FROM TIME TO TIME HEREAFTER, TO PAY OR DELIVER TO SAID TRUSTEE OTHER AND ADDITIONAL SUMS OF MONEY AND/OR REAL OR PERSONAL PROPERTY, AND UPON THE RECEIPT AND ACCEPTANCE OF THE SAME BY SAID TRUSTEE, SUCH MONEY AND/OR SUCH REAL OR PERSONAL PROPERTY SHALL THEREUPON BECOME A PART OF THE PRINCIPAL OF THE TRUST ESTATE HEREIN PROVIDED, AND SHALL BY SAID TRUSTEE BE INVESTED, HANDLED, MANAGED, AND THE INCOME THEREON AND THE PRINCIPAL THEREOF DISPOSED OF, AND IN ALL OTHER RESPECTS BE SUBJECT TO THE SAME TERMS AND TRUST AS HEREINBEFORE SET FORTH, WITH LIKE EFFECT AND INTENT AS IF SUCH MONIES AND/OR REAL AND PERSONAL PROPERTY WERE PART OF THE ORIGINAL TRUST ESTATE HEREINBEFORE DESCRIBED.'

ON JULY 6, 1937, THE ACTING COMPTROLLER GENERAL IN DECISION A 27645, DEALING WITH THE BARNES, SMITH, AND CHANDLER CASES, HELD THAT SINCE THE ADMINISTRATOR OF VETERANS' AFFAIRS MUST ASSUME FULL RESPONSIBILITY FOR DETERMINATIONS WITHIN THE PURVIEW OF SECTION 5 OF THE WORLD WAR VETERANS' ACT THE ADMINISTRATOR OF VETERANS' AFFAIRS SHOULD FIND THAT RECOGNITION OF THE ASSIGNMENT WAS NECESSARY TO GIVE EFFECT TO THE PURPOSE OF THE INSURANCE STATUTE. THE FACTS OF THE PRESENT CASE DO NOT SEEM TO FALL CLEARLY WITHIN THE SCOPE OF THE CITED DECISION OF YOUR OFFICE OF JULY 6, 1937.

IN VIEW OF A DOUBT AS TO THE APPLICATION OF YOUR DECISION OF JULY 6, 1937, TO THE PRESENT CASE AND TO THE PENDING REQUEST FROM THIS ATTORNEY, I HAVE THE HONOR TO REQUEST YOUR DECISION WHETHER IT WILL BE PROPER TO RECOGNIZE THE TRUSTEE AGREEMENT AND THE ATTEMPTED ASSIGNMENT, THE PURPOSE OF WHICH IS TO PERMIT THE PAYMENT OF THE REMAINING FEES UNDER THE JUDGMENTS IN THE CASES LISTED TO A TRUSTEE FOR THE MINOR DAUGHTER OF THE ATTORNEY OF RECORD AND FOR THE BENEFIT OF THAT MINOR.

SECTION 3477, REVISED STATUTES, PROVIDES:

ALL TRANSFERS AND ASSIGNMENTS MADE OF ANY CLAIM UPON THE UNITED STATES, OR ANY PART OR SHARE THEREOF, OR INTEREST THEREIN, WHETHER ABSOLUTE OR CONDITIONAL, AND WHATEVER MAY BE THE CONSIDERATION THEREFOR, AND ALL POWERS OF ATTORNEY, ORDERS, OR OTHER AUTHORITIES FOR RECEIVING PAYMENT OF ANY SUCH CLAIM, OR OF ANY PART OR SHARE THEREOF, SHALL BE ABSOLUTELY NULL AND VOID, UNLESS THEY ARE FREELY MADE AND EXECUTED IN THE PRESENCE OF AT LEAST TWO ATTESTING WITNESSES, AFTER THE ALLOWANCE OF SUCH A CLAIM, THE ASCERTAINMENT OF THE AMOUNT DUE, AND THE ISSUING OF A WARRANT FOR THE PAYMENT THEREOF. SUCH TRANSFERS, ASSIGNMENTS, AND POWERS OF ATTORNEY, MUST RECITE THE WARRANT FOR PAYMENT, AND MUST BE ACKNOWLEDGED BY THE PERSON MAKING THEM, BEFORE AN OFFICER HAVING AUTHORITY TO TAKE ACKNOWLEDGMENT OF DEEDS, AND SHALL BE CERTIFIED BY THE OFFICERS; AND IT MUST APPEAR BY THE CERTIFICATE THAT THE OFFICER, AT THE TIME OF THE ACKNOWLEDGMENT, READ AND FULLY EXPLAINED THE TRANSFER, ASSIGNMENT, OR WARRANT OF ATTORNEY TO THE PERSON ACKNOWLEDGING THE SAME.

THE CLAIM OF THE ATTORNEY, VOLNEY P. MOONEY, JR., FOR THE REMAINING FEE INSTALLMENTS IS A CLAIM AGAINST THE UNITED STATES WITHIN THE MEANING OF THE STATUTE AND MAY BE ASSIGNED ONLY UNDER THE CONDITIONS PRESCRIBED THEREIN. THE ATTEMPTED ASSIGNMENT BY MR. MOONEY, JR., HAS NOT MET THOSE CONDITIONS. WHILE THE SAID STATUTE WAS ENACTED FOR THE BENEFIT AND PROTECTION OF THE GOVERNMENT, AND MAY BE WAIVED BY THE UNITED STATES IN A PROPER CASE, THE CIRCUMSTANCES PRESENTLY APPEARING ARE NOT SUFFICIENT TO AUTHORIZE A RECOGNITION OF THE ASSIGNMENT IN DISREGARD OF THE PROVISIONS OF THE STATUTE.

THE FACTS IN THE PRESENT CASE ARE UNLIKE THOSE CONSIDERED IN THE REFERRED TO DECISION OF JULY 6, 1937, A-27645 (17 COMP. GEN. 4). THE ASSIGNMENT HERE INVOLVED IS DESIRED SOLELY FOR THE BENEFIT AND CONVENIENCE OF THE ATTORNEY, FOR AN OBJECT OR PURPOSE IN WHICH THE UNITED STATES HAS NO CONCERN, AND THERE ARE NO CIRCUMSTANCES MAKING THE ASSIGNMENT NECESSARY, DESIRABLE OR CONVENIENT FROM THE STANDPOINT OF THE GOVERNMENT IN THE MATTER OF EFFECTING PAYMENT OF THE FEES AS REQUIRED BY THE JUDGMENTS. WHILE PAYMENT OF THE INSTALLMENT FEES UNDER SUCH AN ASSIGNMENT MIGHT GIVE THE GOVERNMENT A GOOD ACQUITTANCE ( MARTIN V. NATIONAL SURETY COMPANY, 300 U.S. 588), RECOGNITION OF THE ASSIGNMENT WOULD NOT RESULT IN A BENEFIT OR CONVENIENCE TO THE UNITED STATES BUT, ON THE CONTRARY, MIGHT POSSIBLY, AT SOME FUTURE TIME, RESULT IN CONFUSION, COMPLICATION OR DOUBT, IN THE EVENT OF THE DEATH OF THE ATTORNEY, THE TRUSTEE, OR THE BENEFICIARY.