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ty, he will be entitled to the compensation provided therefor in article III thereof. He may, however, be required by the Director of the Bureau of War Risk Insurance under section 313 of the Act, to assign his cause of action against the person causing his injury, as a condition of receiving compensation. So long as he is in the military service, he cannot make any claim for compensation. Immediately upon his discharge he should make claim setting out all facts to the Bureau of War Risk Insurance, Division of Military and Naval Insurance. By taking the matter up directly with that Bureau after such discharge, he will be informed whether he is entitled to any compensation and the terms and conditions upon which such compensation will be granted.

[Signed] James J. Mayes, Acting Judge Advocate General.

47. DECEDENT SOLDIERS' ESTATES

(A) Wills.

5th Ind.

War Department, J. A. G. O., March 11, 1918.-To the Adjutant General.

1. The propriety of creating an Estates Branch to administer estates of deceased persons subject to military law was submitted to Lieutenant Colonel Kreger, Lieutenant Colonel Wambaugh, and Major Rand. Lieutenant Colonel Kreger, with the concurrence of the other two officers, made a report that such a branch ought not be established until the experience abroad proves it to be necessary.

2. Every member of the forces should be told that in case of his death without a will his land will go to his wife and relatives in accordance with the laws of the state where the land is, and that his other property will go to his wife and relatives in accordance with the laws of the state where he himself is a permanent resident. He should be told also that the laws dividing estates of deceased persons are reasonable. Finally, he should be told that if he wishes to make his will he ought to consult some lawyer of his own state or the judge advocate of his division.

3. As the requirements of the states vary greatly, no one form for executing and attesting wills can be framed. The number of witnesses varies from state to state, and there are a few states in which a seal is necessary-though even for those states it is enough to affix a wafer or a scrap of gummed paper such as a piece of a postage stamp. The requirement most difficult to follow is the one found in most states to the effect that the testator's signature or mark must be affixed in the actual presence of each witness and that the witnesses must sign in his actual presence and in the actual presence of each other.

4. The requirements in Louisiana are so intricate that no one but a Louisiana lawyer can superintend the making of a Louisiana will safely.

The following form of will satisfies the legal requirements of all States, except Louisiana:

This is the last will of John Smith, of Cincinnati, Ohio, a private in Company A of the 750th Infantry. I revoke all other wills. I give to my wife Henrietta Smith One Thousand Dollars and the farm on which we live, I give to each of my children One Hundred and Fifty Dollars. The rest of my property I give to my wife. I name my wife and William Smith executors of this will, without surety.

Signed and sealed this 10th day of April 1918, at Paris, France.

John Smith. [Seal.] Signed and sealed by John Smith in our presence, and by him declared to be his last will this 10th day of April, 1918, in testimony whereof at his request and in his presence and in the presence of each other we do now sign as witnesses the day and year aforesaid.

William H. Clay, Sergt., Company A, 750th Infantry,

186 Vine St., Cincinnati, O.

Samuel Jones, Corp., Co. A., 750th Infantry,
18 Brown St., Dayton, O.

Henry S. Washington, Pvt., Co. A, 750th Infantry,

99 Front St., Newport, Ky.

5. Division Judge Advocates should familiarize themselves with the 112th Article of War and with paragraphs 163-166 of the Army Regulations, to the end that upon the death of persons subject to military law proper advice may be given to the officers concerned in securing the effects. It is important to notice that, as paragraph 163 of the Army Regulations says, there is at present no authority. to pay the debts of deceased soldiers.

[Signed] E. H. Crowder, Judge Advocate General.

(B)

Personal Effects of Decedent-To Whom Delivered.

2d Ind.

War Department, J. A. G. O., June 24, 1918.-To the Adjutant General.

1. The Adjutant General by the preceding indorsement requests the views of this office in connection with the following questions. propounded by the Commanding Officer, Walter Reed General Hospital:

"(a) In a case where a relative is present at time of death, will the signature of an affidavit in the form attached hereto be sufficient evidence that this relative is the legal representative of deceased? In this connection, attention is called to the fact that in several cases relatives have been at this hospital at time of death of soldiers and in most cases have asked that the personal effects be turned over to them immediately and in these cases of course (due to the fact that the soldier has just died a short time before) no executor or administrator has been appointed.

"(b) In a case where a person is at the hospital at time of death who represents a relative, would the signature of an affidavit stating that this person (who is at the hospital at time of death) is authorized to represent the legal representative of deceased soldier and is

authorized by said legal representative to receive the personal effects of deceased, be sufficient evidence upon which to turn over such personal effects to this representative of relatives?

"(c) In cases where there are no relatives or representatives present at time of death, but where the legal representative desires certain articles shown among the personal effects, what element is to govern in deciding the price at which the personal effects of a deceased soldier are to be sold to the legal representative?

"(d) In cases of the class mentioned in paragraph (c) above, is the amount of the expense of shipping articles to relatives to be deducted from the amount for which the articles are sold to them, or is an additional amount to be obtained from these relatives to cover the expense of transportation ?"

2. These questions will be answered in the order stated.

(a) In an opinion of this office dated February 2, 1918 (JAG 220.8) considering the method of disposition of personal effects of a deceased soldier, it was held:

"The person named in the emergency address is not necessarily the legal representative of the deceased soldier. The term 'legal representative' as used in the 112th Article of War (Comp. St. 1916, § 2308a) and paragraph 163, Army Regulations, has been held by this office to mean the duly authorized legal representative of the de. ceased; that is, an executor or administrator, the former being appointed by the will of a testator and provided with letters testamentary issued by the proper court; and the latter appointed by a probate court either in the absence of a will or, if there be a will, in the absence of an appointment of an executor therein, or in the event of the refusal or failure of the executor so appointed to qualify. This answers both the first and second questions. Third; the disposition of the personal effects of deccased soldiers is governed by the provisions of the 112th Article of War and the regulations made in pursuance thereof. This article only permits the legal representative or widow of the deceased soldier, if present,' to take charge of the effects, and provides that if no legal representative or widow be present the commanding officer shall cause the effects to be secured and converted into cash as therein prescribed. The corresponding Article of War under the old code (Article 127) did not require the presence of the legal representative or widow of the soldier for the receipt of the deceased soldier's personal effects, but the new article, in terms, requires such presence, and the plain and unambiguous terms of the statute cannot be varied. It is suggested, however, that in any case where the legal representative or widow cannot be present and they may desire any particular article or articles of the deceased soldier's effects remaining at his post, there is no reason why they may not be permitted by the summary court officer to make such purchase upon such terms as he may consider proper, under that provision of the 112th Article of War which directs that the summary court 'shall have authority to convert such effects into cash, by public or private sale,' etc. In case of such purchase the shipment should be made at the expense of the purchaser."

The form of affidavit referred to in question (a) by which it is sought to establish the appointment of a legal representative is as follows:

[blocks in formation]

Personally appeared before me, the undersigned authority, one after being duly sworn, deposes and says:

who,

That he is the duly authorized legal personal representative of (name,

rank and organization of deceased) and that he is entitled by law to receive the personal effects of said deceased soldier.

Address:

Relationship to deceased:

Subscribed and sworn to before me this

day of

191

The appointment of a legal representative is a matter of record in a probate or other court of like jurisdiction and the only proper proof of such appointment is a copy of this record, certified to by the legal custodian thereof or a certificate by such officer properly authenticated that such appointment has been made. No authority for accepting an affidavit in the form proposed exists and it would not be competent evidence of the appointment of a legal representative. Question (a) is, therefore, answered in the negative.

(b) No authority of law exists whereby the affidavit of a person present at a hospital at the time of the death of a soldier may be accepted as proof that such person is authorized to represent the legal representative of such decedent so as to receive the personal effects. of the deceased which could properly be delivered to the legal representative if he were present. Such affidavit would not be competent proof either of the appointment of the legal representative nor of the selection of a person to act for him. There is no provision of law whereby such personal effects may be delivered to the agent or representative of a "legal representative." Question (b) is answered. in the negative.

(c) This question is answered in the opinion of this office dated February 8, 1918, supra, and the Summary Court Officer is authorized to convert the personal effects of the deceased soldier into cash at public or private sale on such terms as he may consider proper. He, therefore, is empowered to fix such value or price as in his judgment is reasonable and proper. Question (c) is answered that the Summary Court is authorized to fix the price at which personal effects of a deceased soldier will be sold at private sale.

(d) The shipment of personal estate of a deceased soldier to his widow or personal representative after purchase of the same, should be at the expense of the purchaser and if the charges of transportation are "prepaid," the amount should be added to and collected with the purchase price, or such personal estate may be shipped "collect" and the cost of transportation paid by the purchaser at the point of destination.

[Signed] James J. Mayes, Acting Judge Advocate General.

48. REFUND OF DISCHARGE PURCHASE MONEY TO DRAFTED MAN

2d Ind.

War Department, J. A. G. O., June 25, 1918.-To the Adjutant

General.

1. The Adjutant General by the preceding indorsement refers to this office for opinion the question whether money paid by a soldier for the purchase of his discharge should be returned to him upon being drafted into the military service during the period covered by the enlistment contract from which he has been discharged.

From the papers in reference it appears that Scott M. Campbell, 53rd Company, 14 Prov. Recruit Battalion, 155 Depot Brigade, Camp Lee, Virginia, enlisted in the Regular Army on May 1, 1915, for a period of seven years and in the year 1916, date not shown, purchased his discharge for the sum of $120, and since his discharge has been drafted into the service under the Selective Service Law. He is of opinion that the money paid by him for his discharge should be returned.

2. Section 4 of the act of Congress, June 16, 1890 (26 Stat. 158 [Comp. St. 1916, § 1893]), relating to discharge by purchase provides:

"That in time of peace the President may, in his discretion and under such rules and upon such conditions as he shall prescribe, permit any enlisted man to purchase his discharge from the Army. The purchase money to be paid under this section shall be paid to a paymaster of the Army and be deposited in the Treasury to the credit of one or more of the current appropriations for the support of the Army, to be indicated by the Secretary of War, and be available for the payment of expenses incurred during the fiscal year in which the discharge is made."

Pursuant to this act of Congress, General Order No. 31, 1914, was issued which in pertinent part provides:

"In time of peace, except as hereinafter provided, any enlisted man who has completed one year's service as such, and is not undergoing punishment or under charges, may obtain the privilege of purchasing his discharge, subject to the approval of the President, the Secretary of War, or a department or mobilized division commander, as prescribed in sections 3 and 4, paragraph I, of this order. * *

3. The Selective Service Law, May 18, 1917 (40 Stat. 76), provides for the drafting of men between the ages of 21 and 31, inclusive, but makes no exception as to whether or not they have been discharged from former military service by purchase or otherwise. A discharge by purchase can be obtained only in time of peace and is not a guarantee against lawful draft into military service in the event of subsequent Federal need. The discharge of Campbell from his former enlistment, obtained by purchase, served no other purpose and had no other effect than to terminate that enlistment. It does not grant immunity from future military service nor exemption from draft and does not require the amount paid to be refunded in

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