United States Veterans' Bureau v. Thomas

• Decision Date: 18 June 1931
• Parties: UNITED STATES VETERANS' BUREAU. v. THOMAS.
• Court: Virginia Supreme Court

159 S.E. 159

UNITED STATES VETERANS' BUREAU.

v.THOMAS.

Supreme Court of Appeals of Virginia.

June 18, 1931.

Error to Hustings Court of Petersburg.

Notice by the United States Veterans' Bureau against Robert Thomas, committee of Henry Williams, an insane person, seeking to have such committee removed, and to have the order appointing him declared void. To review a judgment sustaining a demurrer to the notice and dismissing the notice, the Bureau brings error.

Reversed and remanded.

Argued before CAMPBELL, HOLT, EPES, HUDGINS, and GREGORY, JJ.

Christian & Barton, of Richmond, and Davis G. Arnold, of Washington, D. C, for plaintiff in error.

Leon M. Bazile, of Richmond, for defendant in error.

GREGORY, J.

This case originated in a notice filed by the Veterans' Bureau, duly served on Thomas, committee for Henry Williams, an insane person, whereby it was sought to have him removed as such committee, and asking that the order which had been entered; appointing him committee, be declared null and void, and that his powers as such be revoked.

Thomas demurred to the notice, assigning two grounds, and, upon a hearing upon the notice and demurrer, the demurrer was sustained by the court and the notice dismissed. It is of this action of the court, that the Veterans' Bureau is now complaining.

The allegations of the notice which the trial court held insufficient when tested by the demurrer are as follows:

"First: That your appointment was made upon a motion of a person not interested, and who was not a member of the class of persons preferred by law.

"Second: That by virtue of section 21, World War Veterans' Act, as amended by an Act of May 29, 1928, and the rules and regulations promulgated thereunder, the undersigned, United States Veterans' Bureau, is charged with the duty of co-operating with and assisting the courts in the selection of suitable, competent and proper persons to act as committees of estates of incompetent World War Veterans, and that you are not a suitable, competent and proper person to hold the trust as committee of said Henry Williams, in that:

"(a) You were a practicing attorney and procured your appointment as committee as a result of your personal solicitation and upon representations that were not in accord with the facts.

"(b) You obtained information relative to this case while in the employ of the United States Veterans' Bureau and made use of the same in procuring your appointment in violation of section 190 of the. Revised Statutes of the United States.

"(c) That you were an employee of the United States Veterans' Bureau within the past two years and by reason thereof you are precluded by section 190 of the Revised Statutes of the United States from prosecuting directly or indirectly any claim before the United States Veterans' Bureau.

"(d) That while you were in the employment of the said United States Veterans' Bureau you, in divers cases, and at different times, neglected, failed and refused to perform the duties required of you by law, and the rules and regulations of the director of the United States Veterans Bureau made in pursuance thereof, relating to the appointment of committees for incompetent World War Veterans and other fiduciaries of deceased World War Veterans, and the management of their estates, and that, well knowing these facts, you, after first having been requested to resign your said position and complying with said request, procured your

[159 S.E. 100]

own appointment as Committee in this, and as well in divers other cases, of insane World War Veterans, to-wit, Darcie Davis, George Brooks, Edgar Morris and John Moomen, sometimes called John Guyther."

The grounds of the demurrer to the notice are as follows: "(1) That petitioner has no standing to prosecute a petition of this nature in the State of Virginia; that the acts of the petitioner in filing and prosecuting the said petition are ultra vires, the same being outside the scope of any right or power given to it under the law" and "(2) that the alleged sections of the World War Veterans' Act, as amended, referred to, have no application to the matter in controversy and are irrelevant and immaterial to the purposes of petitioner's notice."

The notice filed in this case was filed under the provisions of section 5417 of the Code, which reads as follows:

"The court under whose order or under the order of whose clerk any such fiduciary derives his authority, on the application of any surety, or his personal representative, shall, or when it appears proper, on such report of the clerk or a commissioner, or on evidence adduced before it by any party interested, may, at any time, whether such fiduciary shall or shall not have before given bond, or whether he shall have given one with or without sureties, order him to give before such court a new bond in a reasonable time to be prescribed by it, in such penalty, and with or without sureties, as may appear to it to be proper, and may, if such order be not complied with, or whenever from any cause it appears proper, revoke and annul his powers; but no such order shall be made unless reasonable notice appear to have been given to such fiduciary by the commissioner who made such report, or by the surety or his representative making the application aforesaid, or by the service of a rule or otherwise; and no such order or revocation shall invalidate any previous act of such fiduciary."

The principal issue presented for decision is whether the Veterans' Bureau has the right and...