A-90129, DECEMBER 14, 1937, 17 COMP. GEN. 494

A-90129, DECEMBER 14, 1937, 17 COMP. GEN. 494

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - ERRONEOUS PAYMENTS TO BENEFICIARY - FURTHER LIABILITY UNDER ADJUSTED SERVICE CERTIFICATE WHERE, DUE TO A MISTAKE AS TO THE DEATH OF A VETERAN, THE VETERANS' ADMINISTRATION, WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE VETERAN, MADE SETTLEMENT ON HIS ADJUSTED SERVICE CERTIFICATE IN FAVOR OF THE DESIGNATED BENEFICIARY, WHO IS NEITHER HIS LEGAL NOR COMMON-LAW WIFE, THE CHARGE AGAINST THE VETERAN'S CERTIFICATE MAY BE REMOVED AND SETTLEMENT MADE WITH THE VETERAN ACCORDINGLY. 16 COMP. GEN. 371; ID. 984, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 14, 1937:

YOUR LETTER OF NOVEMBER 1, 1937, IS AS FOLLOWS:

ADJUSTED SERVICE CERTIFICATE NO. 3,468,646, DATED SEPTEMBER 1, 1928, IN THE AMOUNT OF $1,118.00 WAS ISSUED IN FAVOR OF GEORGE WOODROW LEWIS, A- 4,253,611. THE CERTIFICATE WAS HYPOTHECATED WITH THE OFFICE OF THIS ADMINISTRATION AT SAN ANTONIO, TEXAS, AS COLLATERAL FOR LOANS WHICH TOTALLED AS OF MARCH 25, 1931, THE 50 PERCENT LOAN VALUE, $559.00.

A COMMUNICATION DATED OCTOBER 14, 1933, WAS RECEIVED FROM THE AMERICAN RED CROSS, HOUSTON, TEXAS, ADVISING THAT LIZZIE LEWIS (COLORED), WIDOW OF GEORGE WOODROW LEWIS, A-4,253,611, HAD REQUESTED ASSISTANCE IN FILING A DEATH CLAIM WITH THE VETERANS' ADMINISTRATION. IN VIEW OF THE FACT THAT THE VETERAN DESIGNATED LIZZIE LEWIS, HIS WIFE, AS THE BENEFICIARY OF HIS ADJUSTED SERVICE CERTIFICATE, SHE WAS FURNISHED THROUGH THE AMERICAN RED CROSS, HOUSTON, TEXAS, THE NECESSARY FORMS FOR PRESENTING HER CLAIM.

UPON SUBMISSION OF A DEMAND FOR PAYMENT (FORM 582) EXECUTED BY LIZZIE LEWIS AND ACCOMPANIED BY A CERTIFIED COPY OF THE DEATH CERTIFICATE OF ONE GEORGE LEWIS, COLORED, WHO DIED SEPTEMBER 11, 1931, AN AWARD IN THE AMOUNT OF $534.85 WAS APPROVED IN FAVOR OF LIZZIE LEWIS, IN SETTLEMENT OF THE VETERAN'S CERTIFICATE, CHECK NO. 265,697 IN THAT AMOUNT BEING MAILED TO HER AT 210 POLK AVENUE, HOUSTON, TEXAS, ON DECEMBER 20, 1933.

AN APPLICATION (FORM 1701) EXECUTED FEBRUARY 8, 1936, WAS SUBMITTED BY GEORGE WOODROW LEWIS, A-4,253,611, AS DISCLOSED BY THE FINGERPRINTS AND SIGNATURE APPEARING THEREON WHICH HAVE BEEN VERIFIED BY THE WAR DEPARTMENT. ON SEPTEMBER 29, 1936, A DEMAND WAS MADE UPON LIZZIE LEWIS FOR A REFUND OF $534.85, THE AMOUNT SHE RECEIVED IN SETTLEMENT OF THE VETERAN'S CERTIFICATE. HER REPLY DATED FEBRUARY 15, 1937, ALLEGING HER INABILITY TO REFUND AND DENYING LIABILITY FOR THE AMOUNT PAID HER IS QUOTED IN PART:

"WHEN I SECURED CERTIFIED COPY OF DEATH RECORD OF MY HUSBAND AND SUBMITTED TO YOUR OFFICE IN APPLYING FOR PROCEEDS OF HIS ADJUSTED COMPENSATION, I HAD BEEN ADVISED OF HIS DEATH AT CORPUS CHRISTI, TEXAS, BY AUTOMOBILE ACCIDENT. AS I HAVE NOT SEEN HIM TO THIS DATE, I HAVE NEVER HAD ANY REASON TO SUPPOSE THAT HE WAS NOT THE PERSON NAMED ON THE CERTIFICATE AND YOUR LETTER WAS THE FIRST INDICATION THAT THERE MAY HAVE BEEN AN ERROR.

"YOU ARE REQUESTED TO INFORM ME SOME FACTS REGARDING THE PERSON WHO IS APPLYING FOR THE PROCEEDS OF ADJUSTED COMPENSATION. IT MAY BE POSSIBLE THAT HE IS MY HUSBAND AND THAT THE DEATH RECORD WAS A MISTAKE. EVEN SO, I WOULD NOT CONSIDER MYSELF LIABLE FOR THE RETURN OF THE AMOUNT RECEIVED AS I SECURED IT IN ABSOLUTE GOOD FAITH AND CERTAINLY WITH NO INTENT TO DEFRAUD THE GOVERNMENT. ALSO, I AM TOTALLY UNABLE TO REPAY SUCH SUM. SIMPLY DO NOT HAVE THE MONEY AND ITS RETURN IS IMPOSSIBLE.'

IN AN EFFORT TO DETERMINE ALL THE FACTS IN THE CASE, REPRESENTATIVES OF THIS ADMINISTRATION WERE ASSIGNED TO CONTACT BOTH THE VETERAN AND THE BENEFICIARY, LIZZIE LEWIS. THE FIELD EXAMINERS' REPORTS DISCLOSED THAT ACCORDING TO THE VETERAN'S STATEMENTS HE WAS LEGALLY MARRIED IN 1925 TO FANNIE WILSON FROM WHOM HE WAS SEPARATED IN 1927, BUT HAS NEVER OBTAINED A DIVORCE; THAT THE PERSON WHO APPLIED FOR AND RECEIVED THE SETTLEMENT ON THE VETERAN'S CERTIFICATE WAS LIZZIE MARSHALL OF 210 POLK AVENUE, HOUSTON, TEXAS; THAT THE VETERAN AND LIZZIE MARSHALL MET IN HOUSTON, TEXAS, AND FOR EIGHT OR NINE MONTHS IN THE YEARS 1928 AND 1929 THEY LIVED TOGETHER AS HUSBAND AND WIFE, A PART OF WHICH TIME THEY LIVED IN CORPUS CHRISTI, TEXAS, IN THE HOME OF ONE RUST STEWART; THAT LIZZIE MARSHALL RETURNED TO HOUSTON AT THE TIME OF HER SISTER'S DEATH INTENDING TO RETURN TO THE VETERAN, BUT NEVER DID; THAT THEY EXCHANGED SEVERAL LETTERS PRIOR TO SEPTEMBER 11, 1931, THE DATE OF THE VETERAN'S ALLEGED DEATH, BUT THAT SINCE THAT DATE THEY HAD NEITHER SEEN NOR WRITTEN TO EACH OTHER.

WITH REGARD TO THE EVIDENCE AND CIRCUMSTANCES WHICH FORMED THE BASIS FOR THE CLAIM FOR THE BALANCE DUE ON THE ADJUSTED SERVICE CERTIFICATE, LIZZIE MARSHALL MADE THE FOLLOWING STATEMENTS IN A SUPPLEMENTAL AFFIDAVIT EXECUTED JULY 24, 1937:

"I SAW IN THE NEWSPAPER, THE BROTHERHOOD EYE, A COLORED NEWSPAPER, WHERE GEORGE WOODROW LEWIS HAD BEEN KILLED IN CORPUS CHRISTI, TEXAS, IN AN AUTOMOBILE ACCIDENT, AND AS I HAD LIVED WITH A GEORGE WOODROW LEWIS IN CORPUS CHRISTI, AS HIS WIFE, I WROTE TO RUST STEWART THERE IN WHOSE HOME WE HAD LIVED AT ONE TIME. I DID NOT GO TO SEE RUST, JUST WROTE HIM A LETTER. I DO NOT REMEMBER EXACTLY WHAT I SAID IN THE LETTER, BUT THE SUM AND SUBSTANCE OF THE LETTER WAS A REQUEST TO RUST TO LET ME KNOW IF THE NOTICE OF THE DEATH OF GEORGE WOODROW LEWIS I HAD BEEN SEEN IN THE NEWSPAPER WAS THE NOTICE OF THE DEATH OF THE GEORGE WOODROW LEWIS WITH WHOM I HAD LIVED IN CORPUS CHRISTI. DO NOT NOW REMEMBER THE DATE OF THE LETTER. RUST REPLIED TO MY LETTER AND TOLD ME THAT GEORGE'S BROTHER, JOHN LEWIS, I THINK, CAME TO CORPUS CHRISTI, AND TOOK HIM TO BEAUMONT. RUST DID NOT SAY WHETHER HE WAS DEAD OR NOT, AND I THOUGHT THAT HE MEANT MY GEORGE WAS DEAD, AS HE ALSO SAID THAT GEORGE'S TRUNK WAS STILL AT A WOMAN'S HOUSE THERE IN CORPUS CHRISTI. * * * BY RUST SAYING THAT THE TRUNK WAS STILL THERE MADE ME THINK MORE THAN EVER THAT GEORGE WAS DEAD. I HAD ASKED RUST WHAT HAD BECOME OF GEORGE'S PAPERS, AND HE TOLD ME THAT HE DID NOT KNOW ANYTHING ABOUT ANY PAPERS, BUT THAT THE TRUNK WAS STILL THERE. I DID NOT GO TO CORPUS CHRISTI, BUT WROTE A LETTER TO MRS. WOODS, THE RED CROSS LADY OF CORPUS CHRISTI, AND TOLD HER THAT GEORGE WAS KILLED AND HIS BROTHER, JOHN LEWIS OF BEAUMONT, HAD CHARGE OF THE FUNERAL AND GEORGE WAS BURIED IN BEAUMONT. I DID NOT KNOW THIS FOR SURE, BUT AS RUST SAID JOHN CAME FOR GEORGE AND TOOK HIM TO BEAUMONT, I NATURALLY THOUGHT THAT HE HAD BEEN BURIED IN BEAUMONT, AND I NATURALLY THOUGHT THAT JOHN HAD CHARGE OF THE FUNERAL. MR MILBURN DID NOT QUOTE ME EXACTLY IN MY FORMER STATEMENT, AS I DID NOT MEAN TO CONVEY THE IDEA THAT GEORGE'S DEATH WAS MADE KNOWN TO ME BY RUST STEWART. THE IDEA I MEANT TO CONVEY WAS THAT FROM THE CONTENTS OF RUST'S LETTER I GATHERED THAT GEORGE WAS DEAD AND BURIED IN BEAUMONT, AS RUST STATED IN HIS LETTER THAT JOHN TOOK HIM AWAY TO BEAUMONT. I DO NOT REMEMBER THE EXACT CONTENTS OF RUST'S LETTER, AND I DID NOT KEEP IT.

"YOU HAVE READ TO ME RUST STEWART'S STATEMENT OF JUNE 26, 1937, AND HE IS MISTAKEN WHEN HE SAYS THAT HE WROTE ME THAT GEORGE HAD A "STROKE.' HE MAY HAVE THOUGHT HE DID SO, BUT ALL HE SAID WAS THAT JOHN CAME AND TOOK GEORGE TO BEAUMONT, AS WELL AS I CAN REMEMBER * * *.'

THE DEATH CERTIFICATE PRESENTED BY LIZZIE MARSHALL (LEWIS) IN SUPPORT OF HER CLAIM SHOWS THE PLACE OF BURIAL AS CORPUS CHRISTI (NUECES COUNTY), TEXAS, AND THERE IS ON FILE A COPY OF A LETTER OBTAINED BY THE FIELD EXAMINER FROM THE OFFICE OF THE AMERICAN RED CROSS OF CORPUS CHRISTI, IN WHICH THAT OFFICE ADVISED THE CLAIMANT TO THE EFFECT THAT THERE WAS A RECORD IN THE COURTHOUSE SHOWING THAT A MAN BY THE NAME OF GEORGE LEWIS HAD BEEN BURIED IN CHAPMAN RANCH, A SMALL TOWN IN THE COUNTY OF NEUCES. WHEN QUESTIONED WITH REGARD TO THE CONFLICTING INFORMATION SHE HAD RECEIVED AS TO THE PLACE OF BURIAL, LIZZIE MARSHALL STATED TO THE FIELD EXAMINER THAT SHE HAD NOT FELT THERE WAS ANY IRREGULARITY ABOUT IT AS SHE "THOUGHT THE RED CROSS KNEW WHAT THEY WERE ING.'

IN AN AFFIDAVIT, DATED MARCH 9, 1937, THE VETERAN MADE THE FOLLOWING STATEMENTS:

"I REMEMBER THAT RUST STEWART AT CORPUS CHRISTI, TOLD ME THAT HE HAD RECEIVED A LETTER FROM LIZZIE, ASKING HIM IF IT WAS ME THAT HAD BEEN KILLED. RUST WAS LIVING AT 1400 BLOCK ON WEST BROADWAY AT THE TIME, AND WAS WORKING FOR THE MISSOURI PACIFIC R.R. AT THE TIME. I DID NOT SEE THE LETTER. HE DID NOT TELL ME WHAT HE WROTE HER OR IF HE WROTE HER AT ALL.

"I REMEMBER THAT THE GEORGE LEWIS, WHO WAS KILLED, WAS STAYING WITH KIT CARSON AT CORPUS CHRISTI, TEXAS, AT THE TIME OF HIS DEATH. KIT IS A MAN AND HE IS A FARMER, BUT LIVES IN CORPUS CHRISTI, TEXAS, THE STREET NOT KNOWN.

"I DID NOT KNOW THAT LIZZIE HAD COLLECTED THE MONEY DUE ON MY ADJUSTED SERVICE CERTIFICATE. I CAME TO THE RED CROSS AT BEAUMONT, TEXAS, IN JUNE 1936, AND ASKED THEM TO HELP ME GET THE MONEY. THEY RECEIVED A LETTER FROM WASHINGTON, D.C., LATER GIVING AN XC-NUMBER, AND MRS. BONE TOLD ME THAT IT LOOKED TO HER LIKE THE DEPARTMENT HAD ME LISTED AS DEAD.

"IT DID NOT OCCUR TO ME THAT LIZZIE MIGHT HAVE COLLECTED THE MONEY, AND I WAS PUZZLED THAT WASHINGTON THOUGHT I WAS DEAD, AND ASKED MRS. BONE TO WRITE A LETTER FOR ME TO WASHINGTON, ASKING THEM TO EXPLAIN THE XC-NUMBER WHEN I WAS NOT DEAD.'

WITH REGARD TO HIS CORRESPONDENCE WITH LIZZIE MARSHALL AND HIS INTERVIEW WITH GEORGE WOODROW LEWIS RELATIVE THERETO, RUST STEWART OF 1039 LOMBRANO STREET, SAN ANTONIO, TEXAS, MADE THE FOLLOWING STATEMENTS IN AN AFFIDAVIT EXECUTED BY HIM ON JUNE 26, 1937:

"I PERSONALLY REMEMBER GEORGE WOODROW LEWIS AND HIS WIFE, LIZZIE. THEY LIVED A WHILE AT MY HOUSE THERE IN CORPUS CHRISTI, TEXAS, THEN HE WAS LIVING AT JOHN HENRY'S HOUSE ON SAM RANKIN ST., AT THE TIME LIZZIE LEFT CORPUS CHRISTI. I THINK THAT SHE WENT TO HOUSTON, TEXAS. IT WAS DURING THE TIME HE WAS LIVING AT JOHN HENRY'S HOUSE, THAT HE GOT A "STROKE," AND HIS BROTHER JOHN CAME TO CORPUS CHRISTI, AND TOOK HIM AWAY. I DO NOT KNOW WHERE. I NEVER HEARD OF GEORGE WOODROW LEWIS BEING KILLED OR DYING, AND I NEVER TOLD LIZZIE EITHER BY WORD OR LETTER THAT GEORGE WOODROW LEWIS WAS KILLED OR HAD DIED. SHE WROTE ME FROM HOUSTON, AND ASKED ME SOMETHING CONCERNING GEORGE, BUT HAVE FORGOTTEN WHAT IT WAS, AND I WROTE HER THAT GEORGE'S BROTHER JOHN CAME THERE AND GOT HIM AFTER HE HAD THE STROKE, BUT I DID NOT SAY ANYTHING ABOUT HIM DYING. * * *

"I DID NOT KNOW ANYTHING ABOUT A GEORGE WOODROW LEWIS BEING KILLED IN AN AUTOMOBILE ACCIDENT. I HEARD THAT A GEORGE LEWIS WAS KILLED, BUT I DID NOT TELL LIZZIE THAT IT WAS HER HUSBAND. I MIGHT HAVE TOLD GEORGE THAT I HAD RECEIVED A LETTER FROM LIZZIE, BUT I DO NOT REMEMBER WHAT I TOLD GEORGE. I REMEMBER THAT LIZZIE WROTE ME A LETTER AND ASKED ME IF GEORGE GOT KILLED, AND I KNOW THAT I WROTE LIZZIE AND TOLD HER THAT A GEORGE LEWIS WAS KILLED, BUT I DID NOT TELL HER THAT IT WAS THE GEORGE LEWIS WITH WHOM SHE HAD LIVED. I DO NOT REMEMBER EXACTLY WHAT I SAID, BUT I KNOW THAT I DID NOT SAY ANYTHING THAT WOULD LEAD HER TO BELIEVE THAT THE GEORGE LEWIS WHO WAS KILLED WAS THE SAME PERSON WITH WHOM SHE HAD LIVED IN CORPUS CHRISTI. I NEVER SAW LIZZIE AFTER SHE LEFT CORPUS CHRISTI, TEXAS.'

THIS CASE IS SUBMITTED FOR YOUR CONSIDERATION AND DECISION AS TO WHETHER OR NOT THE AMOUNT OF THE CHECK PAID LIZZIE LEWIS MAY BE REMOVED AS A CHARGE AGAINST THE VETERAN'S ADJUSTED-SERVICE CERTIFICATE AND SETTLEMENT MADE UNDER THE PROVISIONS OF THE ADJUSTED COMPENSATION PAYMENT ACT, 1936, FOR THE BALANCE DUE ON HIS CERTIFICATE.

THE FACTS STATED IN YOUR LETTER SHOW THAT THE DESIGNATED BENEFICIARY OF THE VETERAN'S ADJUSTED CERTIFICATE, LIZZIE LEWIS OR MARSHALL, WAS NEITHER THE COMMON-LAW WIFE NOR THE LEGAL WIFE OF THE VETERAN WHO WAS THE HUSBAND OF ANOTHER WOMAN DURING THE PERIOD OF HIS COHABITATION WITH HER. HENCE, THE VETERAN WAS UNDER NO LEGAL OBLIGATION TO PROVIDE FOR HER AND THE UNLAWFUL PAYMENT TO HER BY REASON OF THE ERRONEOUS REPORT OF THE VETERAN'S DEATH MAY NOT BE REGARDED AS HAVING BEEN A PAYMENT ON BEHALF OF THE VETERAN, AS WAS HELD IN THE CASE CONSIDERED IN DECISION OF OCTOBER 13, 1936, 16 COMP. GEN. 371, INVOLVING A PAYMENT TO THE VETERAN'S COMMON-LAW WIFE ON THE BASIS OF AN ERRONEOUS REPORT OF THE VETERAN'S DEATH.

THE FACTS DO NOT SHOW THAT THE VETERAN WAS AT FAULT OR NEGLIGENT IN ANY MANNER OR THAT HE HAD KNOWLEDGE OF THE UNLAWFUL PAYMENT TO LIZZIE LEWIS (MARSHALL). HENCE, THE VETERAN MAY NOT BE HELD LIABLE UNDER THE RULE STATED IN DECISION OF MAY 7, 1937, 16 COMP. GEN. 984, INVOLVING A CASE IN WHICH PAYMENT WAS MADE TO A PERSON DESIGNATED AS WIFE AND BENEFICIARY OF THE VETERAN'S ADJUSTED-SERVICE CERTIFICATE ON THE BASIS OF AN ERRONEOUS REPORT OF THE VETERAN'S DEATH, THE VETERAN HAVING HAD KNOWLEDGE OF THE UNLAWFUL PAYMENT.

ACCORDINGLY, ON THE BASIS OF THE FACTS PRESENTED, THE AMOUNT OF THE CHECK PAID TO LIZZIE LEWIS MAY BE REMOVED AS A CHARGE AGAINST THE VETERAN'S ADJUSTED-SERVICE CERTIFICATE AND SETTLEMENT MAY BE MADE WITH THE VETERAN UNDER THE PROVISION OF THE ADJUSTED COMPENSATION PAYMENT ACT OF 1936 FOR THE BALANCE DUE ON HIS CERTIFICATE IN THE ABSENCE OF ANY OTHER OBJECTION.