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AGO 1949 No. 164 - November 18, 1949
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Smith Troy | 1941-1952 | Attorney General of Washington

PERSONS ENTITLED TO WORLD WAR II VETERANS' BONUS

1. The bonus may not be paid to the estate of a veteran of World War II who died after his discharge and before June 8, 1949.

2. The bonus is not payable to the surviving widower of a woman who died while in the federal military service.

3. The bonus is payable to the surviving children of a woman who died in the military service.

4. The bonus is not payable to the widow of one who died in the military service if she has remarried before the time of applying for the bonus notwithstanding that she may have lost her second husband by death or divorce.

5. In case of the death of a man while in the federal service the bonus may be paid to any person who is the legally appointed guardian of his surviving children if the children are eligible for the payment, but if a widow survived the children are ineligible even though the widow has become ineligible through remarriage.

6. In case of the death of a woman in the military service the bonus is payable to her surviving children and may be paid to them through a legally appointed guardian who may be her widower.

                                                                    - - - - - - - - - - - - -

                                                               November 18, 1949

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 164

Attention:  Mr. H. C. Ashenfelter

Dear Sir:

            Receipt is acknowledged of your letter of November 7, 1949 in which you request our opinion on the following questions pertaining to the payment of the World War II veterans' bonus under chapter 180, Laws of 1949.

             [[Orig. Op. Page 2]]

            1. Can the bonus provided by this act be paid to the executor, administrator, heirs or estate of a deceased person who died at any date subsequent to his or her discharge from the federal service?

            2. In case of the death of any such female person while in the federal service can the bonus provided by this act be paid to a surviving widower?

            3. In case of the death of any such female person while in the federal service who left no widower and left children, can the bonus provided by this act be paid to the surviving children?

            4. In case of the death of any such person while in the federal service, can the bonus provided by this act be paid to a surviving widow who subsequently remarried and then lost her second spouse by death or legal separation at the time compensation is requested?

            5. In case of the death of such person while in the federal service can the bonus provided by this act be paid to a remarried widow who is the legally appointed guardian of surviving children?

            6. In case of the death of such female person while in the federal service can the bonus provided by this act be paid to a widower as a legally appointed guardian of surviving children?

            Our conclusions on the various questions asked may be summarized as follows:

            1. The bonus is not payable to the executor, administrator, or heirs of a deceased person who died at any date subsequent to his discharge from the federal service and prior to June 8, 1949.

            2. In case of the death of a female person while in the federal service the bonus is not payable to a surviving widower.

            3. In case of the death of a female person while in the federal service the bonus is payable to her surviving children.

            4. In case of the death of any person while in the federal service the bonus cannot be paid to a surviving widow who subsequently remarried and then had lost her second spouse by death or legal separation at the time the compensation is requested.

             [[Orig. Op. Page 3]]

            5. In case of the death of a man while in the federal service the bonus may be paid to any person who is the legally appointed guardian or surviving children if the children are eligible for the payment, but if a widow survived, the children are ineligible even though the widow has become ineligible through remarriage.

            6. In case of the death of a female person while in the federal service the bonus may be paid to her surviving children through a legally appointed guardian who may be her widower or any other person.

                                                                     ANALYSIS

            Chapter 180, Laws of 1949, provides in § 1:

            "There shall be paid to each person who was on active Federal service as a member of the armed military or naval forces of the United States between the 7th day of December, 1941, and the 2nd day of September, 1945, * * * the sum of ten dollars ($10) for each and every month or major fraction thereof of such duty performed within the continental limits of the United States, and fifteen dollars ($15) for each and every month or major fraction thereof of such duty performed outside the continental limits of the United States: * * *In case of the death of any such person while in the service, an equal amount shall be paid to his surviving widow if not remarried at the time compensation is requested, or in case he left no widow and left children, then to his surviving children, or in the event he left no widow or children, then to his surviving parent or parents if actually dependent upon such deceased person for support."  (Emphasis supplied)

            The underlined language above quoted was taken verbatim from § 1, chapter 1, Laws of 1920 [Rem. Rev. Stat. 10743-1].  The new law is therefore subject to the same interpretations as were given to the 1920 statute.  In an opinion dated February 3, 1921, the former attorney general advised the state auditor that the 1920 statute did not permit payment of the bonus to the estate of one who died after his discharge and before the effective date of the bonus law, but did permit payment if he was alive when the law became effective.  We attach a copy of that opinion.  In the case of  [[Orig. Op. Page 4]] Skidmore v. Clausen, 116 Wash. 403, 199 Pac. 727, our supreme court held that under the former law the widow of a veteran who died five months after his discharge and before the bonus law became effective was not entitled to receive the bonus that would have been payable to him had he survived.  The court inferred in its discussion that had the veteran lived until the effective date of the act he would have qualified for the bonus and it could have been paid to his estate.  Upon the basis of the former opinion and the decision in the Skidmore case, it is our opinion that the bonus cannot be paid to the executor, administrator or heirs of a deceased person who died subsequent to his discharge unless he was living on June 8, 1949, which was the effective date of chapter 180, Laws of 1949.

            The section quoted above provides for payment to the widow, children or surviving parent of a veteran who died in the service.  No provision is made for payment to persons sustaining any other relationship.  Our supreme court has held on numerous occasions that statutes providing for rights or benefits to a widow are not available to a widower notwithstanding § 756 of the Code of 1881 [Rem. Rev. Stat. 148] which provides that in the interpretation of statutes words importing the masculine gender may be extended to females also.  Among the cases holding that the term "widower" cannot be substituted for "widow" areWhittlesey v. Seattle, 94 Wash. 645, 163 Pac. 193; In re Bowen's Estate, 95 Wash. 82, 163 Pac. 379; and In re Borrow's Estate, 92 Wash. 143, 158 Pac. 735.  Since no provision is made in the statute for the payment of a bonus to the surviving widower of a woman who died while in the federal service, no such payment may be made.

            Female service personnel and their relatives and dependents have exactly the same rights to the bonus as have male service personnel and their relatives and dependents.  Obviously, female service personnel cannot leave a widow.  The law expressly provides for surviving children of a person who died in the service and left no widow to receive the bonus.  Consequently, the bonus is payable to the children of female persons who died while in the federal military service whether or not a widower survives.

            The fourth question which your letter raises deals with the right of a widow who had subsequently remarried and then had lost her second spouse by death or legal separation at the time compensation is requested.  The statute provides for payment "to his surviving widow if not remarried at the time compensation is requested."  Holdings of the courts on similar situations involving bonuses and pensions are summarized in 48 Corpus Juris, page 788, as follows:

            "Except where otherwise expressly provided by statute, the remarriage of a widow to another, after the death of, or divorce from, the husband, as the wife of whom she was entitled to a pension, terminates her right to  [[Orig. Op. Page 5]] the pension thereafter, although her second husband is dead, and although the second marriage was illegal when she did not repudiate it or when she procured its dissolution by divorce instead of having it annulled for illegality."

            The statute in this case makes a surviving widow eligible only "if not remarried at the time compensation is requested."  In our opinion the fact of remarriage effectually terminates her right to receive the bonus and she is nevertheless disqualified if her subsequent husband has died or been divorced.

            Your fifth question relates to the right to pay the bonus to a remarried widow who is appointed guardian of surviving children.  If surviving children are entitled to the bonus, it may be paid to any legally appointed guardian for them regardless of any relationship which the guardian may bear to them.  However, the statute provides for payment to children in the following language:

            "* * * or in case he left no widow and left children, then to his surviving children * * *."

            Payment to the children is thus conditioned upon his having left no widow.  In the case of State ex rel. Farwell v. Clausen, 117 Wash. 1, 200 Pac. 563, our supreme court in construing the same provision in the 1920 bonus law held that where a widow survived a veteran who died in the service, her remarriage did not make the bonus payable to surviving parents.  The court said;

            "The language of the statute is clear that the right of a dependent father to receive the compensation is conditioned on the domestic status of the son at the time of his death.  The condition is 'in the event he left no widow or children, then to his surviving parent.'  The complaint alleges that the deceased did leave a widow, and the fact that she subsequently remarried prior to the effective date of the act of the legislature in question is in no way helpful to the father in his claim for compensation."

            While the court in the case just cited was discussing the right of a parent, the decision would be equally applicable to a child since in either case payment is contingent upon the veteran leaving no widow.  The court expressly held that the remarriage which would disqualify her from receiving the bonus does not have the effect of qualifying those who would receive the bonus had she not survived.  The  [[Orig. Op. Page 6]] former attorney general took this view of the 1920 law in an opinion to the state auditor dated January 16, 1926, a copy of which we enclose.

            In regard to your sixth question, the widower is not entitled to receive a payment, consequently his remarriage would have no bearing upon the rights of the children.  If female personnel died in the military service the children are entitled to the bonus and if a legally appointed guardian has been designated for them payment may be made to that guardian on their behalf.  On June 26, 1922, the former attorney general wrote an opinion to the state auditor involving a somewhat comparable question under the 1920 veterans' bonus law and advised that a wife divorced prior to the death of a veteran while in the service who had qualified as guardian of the surviving children could be paid on behalf of the children the bonus because of her capacity as guardian.  A copy of that opinion is enclosed.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General

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