James C. Bly
| Decision Date | 04 June 1957 |
| Docket Number | B-130974 |
| Parties | MR. JAMES C. BLY |
| Court | Comptroller General of the United States |
Further reference is made to your letter of February 12, 1957 concerning the claim of the United States against Mrs. Mary G. Dana, executrix and sole beneficiary under the will of the late Dr. Lawrence W. Dana, by reason of an overpayment of class e allotment made to Dr. Dana in the amount of $580 incident to the service of his son, paul C. Dana, while serving in the army.
The official records show that, while serving as a private, paul C. Dana authorized a class e allotment in favor of Dr. L. W Dana as allottee or Mrs. Mary C. Dana as alternate allottee in the amount of $20 per month for an indefinite period effective July 1, 1943. The allotment was paid to Dr. L. W Dana for the months of July 1943 through March 1946 when it was discontinued. Paul C. Dana was discharged on October 31, 1943, as an enlisted man to accept a commission as flight officer. Under the provisions of paragraph 11, army regulations 35-5520 dated March 4, 1941, in effect during the period here involved, the allotment should have been discontinued with the month of October 1943. An examination of flight officer dana's pay accounts, however, shows that no deductions were made for the class e allotment paid to Dr. Dana for the months of November 1943 through January 1946. Flight officer dana was released from active duty effective January 13, 1946. Since payments continued to be made to Dr. Dana for the months of November 1943 through March 1946 and since no deductions were made in Mr. Dana's pay account to cover those payments, an overpayment arose in the amount of $580 (29 months at $20 per month). Dr. Dana was the recipient of the overpayment and, therefore, legally liable to refund such amount. See 33 Comp.Gen. 309.
It appears from the record before us that Dr. Dana died shortly prior to May 4, 1953, the date the clerk of the orphans' court, mckean county, state of Pennsylvania, issued letters testamentary to mary G. Dana as executrix of the will of her late husband, Dr. Dana. The record as furnished us by the clerk of the orphans' court shows that on September 3, 1954, Mrs. Dana filed a first, final and distributive account as executrix showing mary G. Dana as the sole beneficiary and devisee under the will. Efforts were made to collect the overpayment from Mrs. Mary G. Dana as executrix of the will, and several of our letters requesting repayment were addressed to her in care of your office. In support of the right of the United States to enforce claims against administrators and executors of an estate, there were cited the cases of United States v. Summerlin, 310 U.S. 414, and United States v. Anderson, 66 F.Supp. 870.
In your letter of February 12, 1957, you state that:
You express the opinion that the erroneous payments were not due to any action by Dr. L. W. Dana or paul C. Dana, but rather it is your belief that under the provisions of section 16 of the act of March 2, 1899, 30 Stat. 981, as amended, 10 U.S.C. 894, the person who made the mistake which resulted in the erroneous payments is liable.
Section 16 of the act of March 2, 1899, 10 U.S.C. 894 (1952 ed.) Authorizes the secretary of the army, under such regulations as he May prescribe, to permit army personnel to make allotments from their pay. The section further provides that if erroneous payment is made because of failure of an officer to report, in the manner...
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