FEBRUARY 16, 1923, 2 COMP. GEN. 508

FEBRUARY 16, 1923, 2 COMP. GEN. 508

WAR RISK INSURANCE - DISTRIBUTION OF PROCEEDS UNDER A WAR RISK INSURANCE POLICY PAYABLE TO THE WIFE OF THE INSURED, WITH THE PROVISO THAT IN CASE OF THE DEATH OF THE PARTIES IT SHALL GO TO THE ESTATE OF EITHER THE INSURED OR BENEFICIARY, DEPENDENT UPON SURVIVORSHIP, THE DIRECTOR OF THE VETERANS' BUREAU WHEN UNABLE TO DETERMINE WHICH WAS THE SURVIVOR IS WITHOUT AUTHORITY TO COMPROMISE THE CONFLICTING CLAIMS OF THE TWO ESTATES AND PAY ONE-HALF TO EACH, THE ONLY PROPER REMEDY IN CASE OF DISPUTE OR UNCERTAINTY AS TO THE PROPER BENEFICIARY BEING THAT PRESCRIBED BY THE WAR RISK INSURANCE ACT, I.E., ACTION IN THE DISTRICT COURT IN AND FOR THE DISTRICT IN WHICH ONE OF THE BENEFICIARIES RESIDES.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 16, 1923:

R. H. REID, ADMINISTRATOR OF THE ESTATE OF REBECCA N. WESTON, REQUESTED JANUARY 15, 1923, REVIEW OF SETTLEMENT NO. W-879858-V.B., DATED NOVEMBER 17, 1922, BY WHICH WAS DISALLOWED HIS CLAIM FOR ONE HALF OF THE AMOUNT OF THE WAR RISK INSURANCE POLICY ISSUED TO HARRY WESTON, FORMERLY SERGEANT, SIXTY-EIGHTH COMPANY, SEVENTEENTH BATTALION, ONE HUNDRED AND FIFTY-THIRD DEPOT BRIGADE, FOR THE REASON THAT:

THE CONTRACT OF INSURANCE IN QUESTION UNDER SECTION 12 CONTAINS THE FOLLOWING PROVISION: "IF THE DESIGNATED BENEFICIARY DOES NOT SURVIVE THE INSURED, THEN THERE SHALL BE PAID TO THE ESTATE OF THE INSURED, THE REMAINING UNPAID INSTALLMENTS PAYABLE AND APPLICABLE AS THEY COME DUE, UNLESS OTHERWISE ELECTED.' SINCE THERE IS NO EVIDENCE IN THE CLAIM TO SHOW THAT THE BENEFICIARY, REBECCA NELSON WESTON SURVIVED THE INSURED, PAYMENT OF THIS CLAIM IS NOT AUTHORIZED.

THE RECORDS SHOW THAT HARRY WESTON ENTERED THE MILITARY SERVICE SEPTEMBER 21, 1917. APPLICATION WAS MADE BY HIM FEBRUARY 1, 1918, FOR INSURANCE IN THE SUM OF $10,000, MARY JANE WESTON, MOTHER, BEING NAMED AS BENEFICIARY. SOLDIER WAS DISCHARGED FROM THE SERVICE MARCH 28, 1919, AND BECAUSE OF FAILURE TO PAY THE PREMIUMS THE POLICY LAPSED. ON AUGUST 31, 1920, APPLICATION WAS MADE FOR REINSTATEMENT AND CONVERSION OF $3,000 TERM INSURANCE TO A 20-YEAR ENDOWMENT POLICY, DESIGNATING REBECCA NELSON WESTON, WIFE, BENEFICIARY. THIS WAS APPROVED EFFECTIVE SEPTEMBER 1, 1920, AND THE MONTHLY PREMIUMS WERE PAID TO INCLUDE MAY, 1921.

ON JUNE 3, 1921, WHILE RESIDING AT ENSLEY, ALA., HARRY WESTON AND HIS WIFE, REBECCA NELSON WESTON, WERE KILLED BY GUNSHOT WOUNDS IN THE HEAD AND BODY INFLICTED BY ONE ED CRENSHAW. LETTERS OF ADMINISTRATION WERE ISSUED TO V. L. MCREE AS ADMINISTRATOR OF THE ESTATE OF HARRY WESTON AND TO R. H. REID AS ADMINISTRATOR OF THE ESTATE OF REBECCA NELSON WESTON.

THE POLICY PROVIDES THAT IF THE DESIGNATED BENEFICIARY DOES NOT SURVIVE THE INSURED, THEN THERE SHALL BE PAID TO THE ESTATE OF THE INSURED THE REMAINING UNPAID MONTHLY INSTALLMENTS AS THEY COME DUE UNLESS OTHERWISE ELECTED. IF THE DESIGNATED BENEFICIARY DOES SURVIVE THE INSURED AND DIES BEFORE RECEIVING ALL THE INSTALLMENTS PAYABLE, THEN SUCH UNPAID INSTALLMENTS AS THEY COME DUE, UNLESS OTHERWISE ELECTED, SHALL BE PAID TO THE ESTATE OF SUCH BENEFICIARY. THE PROCEEDS OF THE POLICY SHALL NOT BE ASSIGNABLE, EXCEPT THAT ANY PERSON TO WHOM THIS INSURANCE SHALL BE PAYABLE MAY ASSIGN HIS INTEREST IN THIS INSURANCE TO ANY OTHER BENEFICIARY WITHIN THE CLASS PERMITTED BY THE WAR RISK INSURANCE ACT OR ANY AMENDMENT OR SUPPLEMENT THERETO. NO SUCH ASSIGNMENT SHALL BE BINDING UPON THE UNITED STATES UNLESS IN WRITING AND UNTIL FILED IN THE BUREAU OF WAR RISK INSURANCE, WASHINGTON, D.C.

THE EVIDENCE IN THE CASE SHOWS THAT THE FIRST BULLET FIRED BY CRENSHAW ENTERED THE LEFT TEMPLE OF MRS. WESTON, AND SHE FELL TO THE FLOOR; THE SECOND BULLET ENTERED AT THE RIGHT EYEBROW OF MR. WESTON, CAUSING HIM TO FALL NEAR THE BODY OF HIS WIFE. OTHER BULLETS WERE FIRED INTO THE BODIES. IT IS STATED IN THE AFFIDAVITS OF WITNESSES WHO FIRST REACHED THE SCENE AND VIEWED THE BODIES THAT LIFE WAS THEN EXTINCT, AND THAT NEITHER BODY MOVED. THE CORONER, ATTENDING PHYSICIAN, AND UNDERTAKER TESTIFY THAT IN THEIR OPINION DEATH WAS EVIDENTLY INSTANTANEOUS IN BOTH CASES, AND THE INDICATIONS WERE THAT MRS. WESTON DIED FIRST.

THE ESTATE OF THE BENEFICIARY WOULD BE ENTITLED TO RECEIVE THE INSURANCE UPON THE PRESENTATION OF PROOF THAT THE BENEFICIARY ACTUALLY SURVIVED THE INSURED. THAT FACT WAS NOT ESTABLISHED BY THE EVIDENCE. THE VETERANS' BUREAU DECIDED FROM THE EVIDENCE SECURED BY ITS REPRESENTATIVE AT THE SCENE OF THE MURDER THAT IT WAS IMPOSSIBLE TO DETERMINE WHICH OF THE DECEDENTS SURVIVED THE OTHER. ACTING UPON THIS CONCLUSION, THE BUREAU EFFECTED A COMPROMISE BY AWARDING ONE-HALF OF THE INSURANCE TO EACH ESTATE; AND IN ORDER TO PROTECT THIS ACTION AGAINST THE POSSIBILITIES OF SUIT, THE HEIRS AND LEGAL REPRESENTATIVES OF EACH ESTATE WERE PREVIOUSLY REQUIRED TO EXECUTE ASSIGNMENTS AND RELEASES BY THE TERMS OF WHICH ONE- HALF OF THE AMOUNT OF THE POLICY WAS TO GO TO EACH ESTATE.

THE LAW EMPOWERS THE DIRECTOR OF THE VETERANS' BUREAU TO SUBPOENA WITNESSES AND SECURE SUCH EVIDENCE AS MAY BE NECESSARY TO ESTABLISH THE RIGHTS OF PARTIES TO THE BENEFITS OF INSURANCE, TO PRESCRIBE THE MANNER AND FORM OF ADJUDICATIONS AND AWARDS, AND TO DECIDE ALL QUESTIONS ARISING UNDER THE ACT EXCEPT AS OTHERWISE PROVIDED IN SECTION 5 (WHICH PERTAINS TO MARINE INSURANCE) AND DIRECTS THAT PAYMENTS FROM THE UNITED STATES GOVERNMENT LIFE INSURANCE FUND SHALL BE MADE UPON AND IN ACCORDANCE WITH AWARDS BY THE DIRECTOR.

THE ACT OF MAY 20, 1918, 40 STAT., 556, WHICH AMENDS SECTION 13, ACT OF OCTOBER 6, 1917, 40 STAT., 399, PROVIDES AS FOLLOWS:

* * * IN THE EVENT OF DISAGREEMENT AS TO A CLAIM UNDER THE CONTRACT OF INSURANCE BETWEEN THE BUREAU AND ANY BENEFICIARY OR BENEFICIARIES THEREUNDER AN ACTION ON THE CLAIM MAY BE BROUGHT AGAINST THE UNITED STATES IN THE DISTRICT COURT OF THE UNITED STATES IN AND FOR THE DISTRICT IN WHICH SUCH BENEFICIARIES OR ANY ONE OF THEM RESIDES * * *.

THE VETERANS' BUREAU HAVING ADMITTED ITS INABILITY TO DECIDE WHICH OF THE DECEDENTS SURVIVED THE OTHER AND WHICH ESTATE SHOULD RECEIVE THE INSURANCE, IT APPEARS THAT THE DIRECTOR WAS WITHOUT AUTHORITY TO DISPOSE OF THE MATTER BY A COMPROMISE.

THE ACT OF DECEMBER 24, 1919, 41 STAT., 372, STATED THAT THE PROVISIONS OF SECTION 28 OF THE WAR RISK INSURANCE ACT SHALL NOT BE CONSTRUED TO PROHIBIT THE ASSIGNMENT BY ANY PERSON TO WHOM CONVERTED INSURANCE SHALL BE PAYABLE UNDER ARTICLE IV OF SUCH ACT OF HIS INTEREST IN SUCH INSURANCE TO ANY OTHER MEMBER OF THE PERMITTED CLASS OF BENEFICIARIES. UNDER THE PROVISIONS OF SECTION 21, ACT OF JUNE 25, 1918, 40 STAT., 615, AMENDING SECTION 402, ACT OF OCTOBER 6, 1917, 40 STAT., 409, AND SECTION 13, ACT OF DECEMBER 24, 1919, 41 STAT., 375, THE PERMITTED CLASS OF BENEFICIARIES TO WHOM INSURANCE IS PAYABLE INCLUDES A SPOUSE, CHILD, GRANDCHILD, PARENT, BROTHER, SISTER, UNCLES, AUNTS, NEPHEWS, NIECES, BROTHERS-IN-LAW, AND SISTERS-IN-LAW OF THE INSURED. THE ESTATE OF REBECCA NELSON WESTON NOT BEING WITHIN THE PERMITTED CLASS OF BENEFICIARIES COULD ACQUIRE NO RIGHT TO THE INSURANCE BY VIRTUE OF THE ASSIGNMENT MADE BY THE ESTATE OF THE INSURED.

IT APPEARS THAT THE PROPER DISPOSITION OF THE MATTER WOULD BE FOR THE DIRECTOR OF THE VETERANS' BUREAU TO REQUIRE THE PARTIES IN INTEREST TO PROCEED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 13 OF THE WAR RISK INSURANCE ACT AS AMENDED BY THE ACT OF MAY 20, 1918, 40 STAT., 556, IN CASE OF DISAGREEMENT AS TO THE RIGHTS OF BENEFICIARIES.

UPON A REVIEW OF THE MATTER AND FOR THE REASONS STATED NO DIFFERENCES ARE FOUND AND THE SETTLEMENT IS SUSTAINED.