B-111811, NOVEMBER 19, 1952, 32 COMP. GEN. 249

B-111811, NOVEMBER 19, 1952, 32 COMP. GEN. 249

GRATUITIES - SIX MONTHS' DEATH - DESIGNATION OF BENEFICIARY - EFFECT OF MISNOMER A MISNOMER OR AN INACCURACY IN THE NAME OF A BENEFICIARY DESIGNATED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY PAY PROVIDED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, DOES NOT RENDER THE DESIGNATION INSTRUMENT INOPERATIVE PROVIDED THE PERSON WHOM THE DECEDENT INTENDED AS THE BENEFICIARY CAN BE IDENTIFIED WITH CLEARNESS AND CERTAINTY BY THE DESCRIPTION IN THE DESIGNATION INSTRUMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO C. L. CARDWELL, DEPARTMENT OF THE ARMY, NOVEMBER 19, 952:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF SEPTEMBER 8, 1952, YOUR LETTER DATED AUGUST 15, 1952, WITH SUPPORTING CASE FILE, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF CORPORAL ARTHUR J. DUBE, RA 11,189,951, BROTHER OF ADELARD DOLARD DUBE, RA 11,160,793, DECEASED, LATE PRIVATE, FIRST CLASS, U.S. ARMY, FOR $671.40, REPRESENTING SIX MONTHS' DEATH GRATUITY PAY CLAIMED UNDER THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, 10 U.S.C. 903.

IT IS STATED THAT UPON THE DECEDENT'S ENLISTMENT IN THE REGULAR ARMY, SEPTEMBER 26, 1946, HE DESIGNATED " OTTO" DUBE, C/O A. STEWART CARTON, WEST MAIN ROAD, LITTLE COMPTON, RHODE ISLAND, RELATIONSHIP GIVEN AS BROTHER, TO RECEIVE, AS PRINCIPAL BENEFICIARY, THE SIX MONTHS' GRATUITY PAY PROVIDED IN THE ABOVE-CITED STATUTE. THE RECORD SHOWS THE DECEDENT HAD SEVERAL BROTHERS, AND THAT HE NAMED AS ALTERNATE BENEFICIARY AND ALSO AS EMERGENCY ADDRESSEE HIS BROTHER RAYMOND DUBE OF 618 NEAVE STREET, CINCINNATI, OHIO. ADELARD DOLARD DUBE IS REPORTED TO HAVE DIED SEPTEMBER 1, 1950, UNDER CIRCUMSTANCES WHICH ENTITLE HIS DESIGNATED BENEFICIARY TO RECEIVE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY. HOWEVER, WHILE THE DECEDENT HAD SEVERAL BROTHERS, NONE OF THEM IS NAMED " OTTO" AND THE CLAIM OF CORPORAL ARTHUR J. DUBE IS PREDICATED ON ARTHUR'S BELIEF THAT HE IS THE BROTHER WHOM THE DECEDENT INTENDED SHOULD BE THE PRINCIPAL BENEFICIARY. SINCE THERE IS NO PERSON NAMED " OTTO" DUBE, WHO BEARS THE RELATIONSHIP OF BROTHER TO THE DECEDENT, THE QUESTION YOU PRESENT FOR CONSIDERATION IS WHETHER THE DESIGNATION AS MADE, NOTWITHSTANDING THE USE OF THE NAME " OTTO," SUFFICIENTLY IDENTIFIES THE PARTICULAR BROTHER WHOM THE DECEDENT INTENDED SHOULD BE HIS PRINCIPAL BENEFICIARY.

THE DESIGNATION OF A BENEFICIARY FOR THE PURPOSES OF THE SIX MONTHS' GRATUITY CONSTITUTES A DECLARATION OF A MAN'S DESIRE WHICH HE WISHES CARRIED INTO EFFECT AFTER HIS DEATH. AS SUCH IT IS THEREFORE IN THE NATURE OF A WILL OR TESTAMENT AND THE SAME RULES OF CONSTRUCTION SHOULD APPLY THERETO. 18 COMP. DEC. 277, 20 ID. 599, 602. THE IDENTITY OF A BENEFICIARY IS A QUESTION OF FACT TO BE FOUND FROM THE INSTRUMENT ITSELF, CONSTRUED IN THE LIGHT OF ALL THE ADMISSIBLE EVIDENCE. AS A GENERAL RULE A LEGACY IS NOT DESTROYED BY AN INCORRECT DESCRIPTION NOR DOES A FALSE DESCRIPTION RENDER A DEED OR OTHER WRITING INOPERATIVE. A MERE INACCURACY IN THE NAME, AS USED BY A TESTATOR TO DESCRIBE A BENEFICIARY IN HIS WILL, WILL NOT CAUSE THE GIFT TO FAIL WHERE THE IDENTITY OF THE PARTICULAR PERSON INTENDED BY THE TESTATOR AS THE BENEFICIARY IN QUESTION CAN BE ESTABLISHED BY THE CONTEXT OF THE WILL. FARRELL V. SULLIVAN, 144 A. 155.

AS ABOVE STATED, THE DECEDENT, UPON HIS ENLISTMENT IN THE REGULAR ARMY ON SEPTEMBER 26, 1946, DESIGNATED " OTTO" DUBE AS HIS PRINCIPAL BENEFICIARY SHOWING THE RELATIONSHIP TO BE THAT OF BROTHER. THE DECEDENT'S INTENTION TO NAME ONE OF HIS BROTHERS IS THUS CLEARLY EVIDENCED IN THE DESIGNATION ITSELF AND SINCE HIS BROTHER " RAYMOND" IS NAMED AS ALTERNATE, IT FOLLOWS THAT AS TO PRINCIPAL BENEFICIARY THE DECEDENT MUST HAVE HAD IN MIND SOMEONE OTHER THAN RAYMOND. IN ADDITION TO CLEARLY SHOWING THAT THE PERSON HE INTENDED TO BE HIS PRINCIPAL BENEFICIARY SHOULD BEAR THE RELATIONSHIP TO HIM OF BROTHER THE DECEDENT FURTHER SPECIFICALLY INDICATED THAT THE THEN CURRENT ADDRESS OF THAT BROTHER WAS IN CARE OF A. STEWART CARTON, WEST MAIN ROAD, LITTLE COMPTON, RHODE ISLAND. THE EVIDENCE IN THIS RESPECT SHOWS THAT DECEDENT'S BROTHER ARTHUR ENTERED THE MILITARY SERVICE IN THE MONTH OF JANUARY 1949, HAVING RESIDED FOR ABOUT EIGHT YEARS IMMEDIATELY PRIOR THERETO WITH MR. CARTON, WEST MAIN ROAD, LITTLE COMPTON, RHODE ISLAND. WHILE THE FILE CONTAINS VARIOUS OTHER STATEMENTS--- (ALL OF WHICH APPEAR TO HAVE BEEN MADE IN SUPPORT OF THE CONTENTION THAT MRS. LOROTTO DUBE, THE WIFE OF RAYMOND DUBE, IS THE DESIGNATED PRINCIPAL BENEFICIARY/--- THE EVIDENCE IN ALL IS TO BE VIEWED AS ESTABLISHING THAT WHEN THE DECEDENT ENLISTED IN THE REGULAR ARMY ON SEPTEMBER 26, 1946, HIS BROTHER ARTHUR WAS, AT THAT TIME, THE ONLY ONE OF HIS BROTHERS RESIDING WITH A. STEWART CARTON, WEST MAIN ROAD, LITTLE COMPTON, RHODE ISLAND, THE ADDRESS SHOWN IN HIS DESIGNATION OF BENEFICIARIES. HENCE, IT WOULD SEEM PROPER TO CONCLUDE THAT THE BROTHER WHOM ADELARD HAD IN MIND AND WHOM HE IN FACT DESIGNATED AS PRINCIPAL BENEFICIARY, WAS HIS BROTHER ARTHUR. UNDER SUCH CIRCUMSTANCES THE RULE STATED IN GARDNER V. VIALL, 90 A. 760--- THAT IS, A MISNOMER OF A LEGATEE IS IMMATERIAL WHERE THE PERSON INTENDED CAN BE IDENTIFIED BY THE DESCRIPTION IN THE WILL--- IS APPLICABLE. ACCORDINGLY, IF OTHERWISE CORRECT, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PAY MAY BE MADE TO CORPORAL ARTHUR J. DUBE, URA 11,189,951, AS BROTHER AND DESIGNATED BENEFICIARY OF ADELARD DOLARD DUBE, DECEASED. SEE A-12290, NOVEMBER 16, 1926, AND B-27075, OCTOBER 2, 1942.