B-144220, FEB. 8, 1961

B-144220, FEB. 8, 1961

TO WILLIAM PALITZ, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1960, FILE REFERENCE P 3628, CONCERNING THE CLAIM OF SOFIA ILYNICHNA MARSHAK UNDER A SOLE OF EXCHANGE ISSUED IN MOSCOW, RUSSIA, IN 1918. THE BASIS FOR HER CLAIM IS STATED IN YOUR LETTER SUBSTANTIALLY AS FOLLOWS:

ON AUGUST 2, 1918, IN MOSCOW, RUSSIA, THE UNITED STATES CONSUL IN MOSCOW ISSUED SOLE OF EXCHANGE NO. 27 PAYABLE TO THE ORDER OF PAKSHWER AND CO. IN THE SUM OF $5,000. THEREAFTER ON JUNE 7, 1923, IN DANZIG, SIEGMUND PAKSCHWER EXECUTED AN INSTRUMENT BY THE TERMS OF WHICH HE CONVEYED SAID SOLE OF EXCHANGE, FOR VALUE, WITHOUT DISCOUNT, TO MRS. MARIA MIKLAILOWNA SACKER-ARONSON. MRS. ARONSON DIED IN 1946 AND WAS SURVIVED BY HER DAUGHTER, SOFIA ILYNICHNA MARSHAK, YOUR CLIENT.

YOU ASK WHETHER THE SOLE OF EXCHANGE MAY BE REDEEMED ON BEHALF OF YOUR CLIENT, AND, IF NOT, THE REASONS THEREFOR.

FROM COPIES FURNISHED WITH YOUR LETTER OF THE SOLE OF EXCHANGE AND THE INSTRUMENT OF CONVEYANCE THEREOF TO MRS. ARONSON, THERE APPEARS TO BE AN INCONSISTENCY IN THAT THE CONVEYANCE REFERS TO A SOLE OF EXCHANGE DRAWN UPON THE NATIONAL CITY BANK OF NEW YORK WHEREAS THE SOLE ITSELF IS DRAWN UPON THE SECRETARY OF STATE. THUS, IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, IT APPEARS DOUBTFUL IN THE ABSENCE OF A VALID EXPLANATION OF THIS DISCREPANCY THAT MRS. ARONSON'S HEIR IS ENTITLED TO PAYMENT UNDER THE SOLE OF EXCHANGE TO BE PRESENTED.

IN ANY EVENT, HOWEVER, SEARCH OF THE APPROPRIATE GOVERNMENT RECORDS HAS FAILED TO DISCLOSE ANY RECORD OF THE TRANSACTION INVOLVED. THERE IS NO RECORDED OUTSTANDING LIABILITY FOR THIS SOLE OF EXCHANGE OR RESERVATION OF FUNDS FOR PAYMENT THEREOF. THE PRESUMPTION IS, THEREFORE, THAT THE GOVERNMENT'S LIABILITY WITH RESPECT TO THE SOLE OF EXCHANGE IN YOUR CLIENT'S POSSESSION HAS BEEN PROPERLY DISCHARGED, EITHER BY ISSUE OF A SUBSTITUTE INSTRUMENT OR OTHERWISE OR THAT IT WAS NOT AUTHORIZED TO BE ISSUED. AND IN VIEW OF THE AGE OF THE INSTRUMENT UNDER WHICH CLAIM IS BEING MADE--- IT HAVING BEEN ISSUED IN 1918--- YOUR CLIENT WOULD BE ESTOPPED FROM OVERCOMING THESE PRESUMPTIONS IN THE ABSENCE OF A SATISFACTORY EXPLANATION FOR THE DELAY. THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY REFUSED TO ALLOW CLAIMS WHERE THE CLAIMANT SLEPT UPON HIS RIGHTS FOR A LONG PERIOD, IN THE ABSENCE OF CLEAR AND SATISFACTORY EVIDENCE OF THE VALIDITY OF THIS CLAIM AND NONPAYMENT THEREOF. SEE 4 COMP. DEC. 276; 5 ID. 281; 4 COMP. GEN. 805. SEE ALSO THE FLOYD ACCEPTANCES, 74 U.S. 666, 680. IN THE INSTANT CASE, YOUR CLIENT HAS DELAYED PRESENTMENT OF THE SOLE OF EXCHANGE FOR 14 YEARS FROM THE TIME SHE APPARENTLY ACQUIRED IT AS THE HEIR OF MRS. ARONSON, AND MRS. ARONSON HAD HELD THE INSTRUMENT FOR 23 YEARS WITHOUT MAKING CLAIM UPON IT AFTER HAVING RECEIVED IT WHEN IT WAS 5 YEARS OLD.

BUT IRRESPECTIVE OF THE QUESTION OF LACHES, SINCE THERE IS NO TRUST FUND IN THE POSSESSION OF THE GOVERNMENT FOR PAYMENT OF THE SOLE OF EXCHANGE, THE CLAIM IS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WHICH PROVIDES, QUOTING FROM THE CODE, HAT:

"71A. SAME; LIMITATION OF TIME ON CLAIMS AND DEMANDS.

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"/2)WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.' CF. WAYNE, ADM-R, V. UNITED STATES, 26 CT.CL. 274, 289.

FOR THE REASONS SET FORTH ABOVE, WE MUST ADVISE THAT THE SOLE OF EXCHANGE REFERRED TO IN YOUR LETTER MAY NOT BE REDEEMED.