Respondents Brief Opposing Petition for A Writ of Certiorari — United States v. Oregon

FILE COPY >

Fn the Suprenie Court - . i.

of the Gnited States —

OCTOBER TERM 1960

No. 329

THE UNITED STATES OF AMERICA, as trustee for the sole

use and benefit of the General Post Fund, Petitioner

aoe ;

Vv.

mA

“THE STATE OF OREGON, acting by and through the State _

Land Board, Respondent

‘In the Matter of the Estate of Adam B. Warpouske, Deceased;

Portland Trust & Savings Bank, Administrator of _ Estate

of Adam B. Warpouske, Deceased

_ RESPONDENT'S BRIEF OPPOSING —

PETITION FOR A WRIT OF CERTIORARI

ROBERT ¥. THORNTON,

Attorney General of Oregon

CATHERINE ZORN

Assistant Attorney General

Attorneys for Respondent State

of Oregon, acting by and

through the State Land Beard

SUBJECT INDEX

, Page

MINS osrckinsosngusenrs PERN bo TTT lh EN NG EE

| Statement of GI a wnsnsssicsinyminstemseistineemainnieninntsierene a

Argument . STOR NEA!

I—The ein Supreme Court's construction of 38 “

U.S.C. (1952 ed.) 17-17) as being a statute based

upon contract is ‘consistent with an almost uni- ;

- form line of judicial decision 2... eee. h)

itt being established_that the groylising of 38

U.S.C. (1952 ed.) 17- i7j are based upon contract,

~. «the second question concerning the constitution-

ality of a construction of a se s>pereting effect

of the statute is hypothetical)... one. — 10°

I oOo otek cae eakadnnaemneaineesdansialameenincsiionianes 12

Appendix A nnn e.nn.nseneesesecesiecseeseei sien seeseseessennneseeessutesnesenesetnons 13-15

Appendix B Bannenyens 16

CITATIONS

| CASES

Abbott v. Morgenthau, 93 F. 2d 242 ot... ped a 6

Bonnér’s Estate, In re, 192 Misc. 753, 80 N.Y.S. 2d 122 .. §

Coakley v. Attorney General, 318 Mass. 508, 62 N.E. 2d 659 9

Dexter v. Hall, 82 U.S. 20, 21 L. ed. 73 «ee ts 8

German Savings and Loan Soe. v. DeLashmutt, (C. fon BA hy

Or.) 67 F. 399 ......... accctanibieceiiectinacnansclcicnlli si namtbnnapentgehedadatinion 8

Gonsky’ s Estate, ‘ re, 79 N. Dak. 123, 55 N.W. 2d _ eS

Graham v. Allen, 116 Or, 501, 241 P.1007 0.0. gente. 8B

Lindquist’s Estate, In re, 25 Cal. 2d 697, 144 P. “2d 438, 154

Pa ROCA Ree EE Re) Me aie Q

- Mager v. Grima, 49 U.S. 490, 12 L. ed. ae Sena “1

Maguire, Estate of, 13 D & C 2d 247, 7 Fiduc. Rep. 701 .

—— s Court of Philadelphia County) . venta ance 10

vw:

i

o

‘McGee's Estate, In re, 268 N.Y.S. 79°

BUSS. Cee) Ne... LQ... aon

a@2e

CASES—Continued

Mauck v. United States, 94 F. 2d 745.»

O'Connell v. United States, 37 F. Supp. 832... ne

Skriziszouski’s Estate, In re, 382 Pa. 634, 116 A. 2d 841... ..

State v. Brown, 1952, 110 F. Supp. °°...

Turner’s Estate, In-re, 1959, m1 Cal. App 2d 591, 341 P. 2d

itt ET one ner ie en oS ;

United States v. Brown, 1952, 110 F. mai 370. Ry A

United States v. Essex Co., 44 F. Supp, 476. 6

United States v. Fox, 94 U.S. 315, 320,24L.Ed.192..... 12

United States v. Gallagher, 97 F. Supp. 1014. {2.0 6

United States v. Security-First National Bank of.

Los Angeles, 195§, 130 F. Supp. 521, 522 . 5, 7, 8-9, 12

United States v. Stevens, 302 U.S. 623, 82 L. ed. 484 | ate ST

Warpouske’s Estate, In re, Or. 1960, 352 P. 2d 539 0000.0...

Witte’s Estate, in re, 1953, 174 Kan. 360, 255 P: 2d 1039 .......5, 7, UJ

{ STATUTES .

Ne eee ee

. MISCELLANEOUS) ae

UBC. (2008 of) 17-17j...5" 1; 2,5, 6, 9, 10, 12

38 U.S.C. (1963 ed.) 460 ....2....... ee Rar od a RO q.;

“

a

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In the Supreme Court

of the Gnited States

OCTOBER TERM 1960

No. 329

THE UNITED STATES OF AMERICA, as trustee for the sole

use and benefit of the General Post rune, Petitioner

Vv.

. THE STATE OF OREGON, acting by and through the State

Land Board, Respondent \

‘ a >

In the Matter of the Estate of Adam B. Warpouske, Deceased;

Portland Trust & Savings Bank, Administrator of the Estate

of Adam B. eps, Deceased .

——- -- -———--—

‘RESPONDENT'S BRIEF OPPOSING

PETITION FOR A WRIT OF CERTIORARI

QUESTIONS PRESENTED

_ Under the circumstances of this case, the questions

presented by petitioner for writ of certiorari, in sub-

stance, appear to be:

1. Whether the provisions of 38: : USC. (1952 ed.)

17-17j are founded upon contract and thus do not apply to

amentally incompetent veteran, incapable of contracting,

dying intestate and without heirs while being caréd for

ina Veterans’ Administration hospital, admitted to such

hospital without a guardian of his person to represent -

him or commitment by a court.

2. Whether Congress cdn constitutionally ain ide for

@

.

the automatic vesting in the United States of the per-

sonal property of a veteran dying intestate and without

heirs upon the condition of care being furnished him by

the Veterans’ Administration Donpital. .

"STATEMENT OF CASE

By this petition for writ of certiorari the United

States seeks review of the decision of the Oregon Su-

preme Court affirming the decree of the State Circuit

Court escheating to the State of Oregon for the benefit

of the Common School Fund that portion of the estate of

Adam Warpouske, deceased, derived from the estate of

his deceased brother,

The case arises out of competing claims of the United

States and the State of Oregon: presented to the Probate

Department of the Circuit Court for Multnomah County

in the administration of Warpouske’s estate. The United

States claimed under 39 U.S.C. (1952 ed.) 17-17j (App.

A), which provides for vesting in the United States, as

trustee of the general post fund, of personal property of

veterans dying intestate and without, heirs while being

cared for in a Veterans’ Administration facility or hos-

pital. The State of Oregon rested its claim upon Oregon

Revised Statutes 120.010 (App. B) which provides -for

escheat to the State of Oregon for: the benefit of the

Common School Fund of estates of persons ding in-

' testate and without-heirs.

The facts relating to this mentally incompetent vet-

eran are unique. Warpouske had a long history of men-

tal illness antedating any admission of him to a Veterans’

a eee aes fF cone, ee ee

3

Administration facility or’hospital. In addition to this,

at the time of his admission to the Veterans’ Administra-

tion Hospital at Portland, he was in a cornatose or semi-

comatose condition and remained in such condition until

his death: No guardian of his person“was ever appointed

to. represent and act for him, nor was there any order of

a court committing or directing his’ a ‘to the

facility.

; Warpouske was a veteran of World War I and a resi-

dent of Portland, Oregon.:On December 31, 1955, he suf-

fered a’cerebral hemorrhage and hip fracture and’ was

taken to the Good Samaritan Hospital (R. 49, p. 18).

Appearing: to be without funds, he was moved to the

Multnomah County Hospital a’ few days later (R. 49,

p. 18). He remained at this hospital until March 1, 1956,

when he was transferred to the Veterans’ Administration

Hospital at Portland where he died on March 19, 1956

( R. 49; P. 18). .

The cerebral hemorrhage sania: him unconscious

and he remained unconscious or at best at times semi-

conscious until his death. In the opinion of the physician

attending him at the Multnomah County Hospital, War-

pouske probably did not know where he was or whether -

he.was being transferred to the Veterans’: Hospital -

(Stipulation, Jmt. Roll, Paper No. 33; also Ex. 8). The

‘Veterans’ Hospital record states there was no Clearing

of his sensorium (Ex. 8).

Shortly before he died, it was learned that Warpouske-

had become the sole heir of his deceased brother whose .

estate netted the sum of $12,727.67 (R. 34). He never

4

was aware of this inheritance. On March 9, 1956, the

Portland Trust Bank was appointed guardian of War-

pouske’s estate to receive this inheritance for him from

his brother's estate in Wisconsin (R. 13, p. 16). No

guardian of. Adim Warpouske’ s person was ever

appointed.

The re other assets in Warpouske’ S estate | were un-

‘expended federal pension funds of a net sum of $971.47

(R. 34) and a * items of personal — valued at

3928.

Upon the trial of the claim of the United States and

the petition for escheat of the State. of Oregon in the

probate court, the United States produced its entire

Veterans’ Administration file covering Warpouske. The

court directed the attorneys for the respective parties

to select from the file:such relevant and material portions

‘as each might wish to introduce in evidence. The ex-

hibits extracted disclosed a long history of mental illness’

and mental deficiency for Warpouske predating any ad-

mission to a veterans’ facility. A report covering an ex-

~amination in connection with Warpouske’s admission to

a veterans’ hospital in May 1933 diagnosed his mental

condition as dementia‘praecox, hebephrenic type, existing

as early as 1924 and very likely prior to that date (Ex.

_ 3). Other reports classified him as a moron as well as

‘ diagnosing his mental condition as psychotic.

The State of Oregon relinquished all claim to such

portion of Warpouske’s estate as consisted of unexpended

_ federal pension funds, recognizing they were subject to

‘recoupment by the federal government under the pro

9)

«

visions of 38 U.S.C. (1952 ed.) 450 and that their rever-

sion to the United States was not a matter of contract but

a revesting of a contingent reversionary interest reserved .

by the federal government in the grant of a pension to a

- pensioner.

_ The probate court found that Warpouske. was not

mentally competent to understand the consequences of

his acceptance of hospitalization in hospitals operated by

the Veterans’ Administration nor competent to enter into

any contract repecting any such hospitalization and,

therefore, the provisions of 38 U.S.C. 17-17j, supra, did not °

control the disposition or vesting of his personal property.

The court decreed the estate (except for the unexpended

pension funds) escheated to the State of Oregon for the

benefit of the Common School Fund. This decree was

affirmed by the Oregon Supreme Court.

ARGUMENT

I =. .

The Oregon Supreme Court’s construction of 38

U.S.C. (1952 ed.) 17-17j as being a statute based upon

contract is entirely consistent with an almost uniform

line of judicial decision in’ both state and federal courts.

It is well established that this statute is based upon”

contract between the veteran and the Veterans’ Adminis- “

tration: In re Turner’s Estate, 1959, 171 Cal. App. 2d 591,

- 341. P, 2d 376; In re Witte’s Estate, 1953, 174 Kan. 360,

255 .P. 2d 1039; United States v. Stevens, 302 U.S. 623,

82 L. ed. 484; United States v. Security-First National —

‘Bank of Los Angeles, 1955, 130 F. Supp. 521; United ©

States v..Brown, 1952, 110 F. Supp. 370; Mauck v. United §

States, 94 F. 2d 745; Abbott v. Morgenthau, 93 F. 2d 242; §

In re Gonsky’s Estate, 79 N. Dak. 123, 55 N.W. 2d 60;.

In re McGhee’s Estate, 268 N.Y.S. 79; United States v.

Essex Co.,-44 F. Supp. 476; O’Connell v. United States, |

_ 37 F. Supp. 832; United States v. Gallagher, 97 F. Supp

* 1014.

_ Examination of ne provisions of 38 U.S.C. 17-17)

supra, discloses that the statute is couched in the language

of contract and is intended to be founded upon contract.

Section 17 speaks of “acceptance” of care and treat- e

ment as constituting an “acceptance” of the terms and ;

conditions of thé subchapter, with the effect of an “as- J

signment”, effective at the veteran’s death, of the per--f

‘sonal assets in the veteran’s estate. Section 17g directs §

- the Administravsr of Veterans’ Affairs to provide.for an }

application form for hospital treatment which shall in- [

clude notice of the provisions of the statute and for post- |

ing of the notice of the statutory provisions in the build- }

ings where the veterans are housed. The purpose of these

provisions is to lay the foundation for contract which may ;

be accepted by veterans béing admitted to the hospital |

-by execution of the application for admission, or, as to |

patients already in a hospital, by remaining and accepting §

further treatment. i

The cases cited, supra, illustrate the contractual

character of the provisions of this statute and that the

vesting of the veterans’ personal property in the United

States is not a matter of escheat or automatic: vesting.

Such in fact was the position taken by the federal gov-

a

ernment in In re Witte’s ‘Estate, 1953, 174 Kan. 360, 255

P. 2d 1039, 1044, which was stated as follows: |

“* * * Its [United State’s| principal argument

however is that the statute is not one of escheat or

of the control of who shall receive a decedent’s estate,

but one providing for a contract, and that it bases its

claim on 2 contract authorized by and executed under

the statute. In support it relies principally on United

States v. Stevens, 302 U.S. 623, 58 S. Ct. 388, 82 L. ed. -

484. * * *” (Emphasis Supplied)

Again in United States v. Stevens, 302 U.S. 623, 628,

| 82"L. ed. 484, 488, mentioned in the Witte case, the gov- '

ernment based its claim under this statute ‘on contract:

“There is no ambiguity. in the contract or in the

Act which authorized it. * * * © i

“The contract, however, is valid under the applic— ,

able state law. *. * * :

“The claim of the Government is based on a con-

tract between the veteran and the Home. * * *

Both parties were competent to make the contract.

This contract is valid and enforceable * * *.”

(Emphasis supplied) -

Kmart

: Likewise in United States v. Security-First National

Bank of Los Angeles, 130 F. Supp. 521, 522, the federal

government rested its claim on contract:

“* * %* The Government claims that on the

death of Morris, it became the owner of this. deposit

by- virtue of a contract between the deceased and

:# the Veterans Administration * *. *.” (Emphasis

supplied) ° ae

While § 17a speaks of a conclusive presumption of

_ contract arising out of the fact of death of a veteran in

a veterans’ facility or hospital, this provision must be

Ww

{*)

8

_ read in context in relation to the subchapter as a whi

_ as well as in relation to the law of contract generally. #

fact this section expressly states that the presumpt 7

_ shall be subject to the conditions of the subchapter. Th

‘there must be an acceptance of care or treatment by

veteran which shal constitute an acceptance of the p

visions and conditions of the subchapter which shall

the effect of an assignment. An “acceptance” conte

plates a person mentally competent and capable of;

cepting. A valid couutract can arise only where a persor

- capable of contracting. Dexter v. Hall, "82 US. 20.8

L. ed. 73: German Savings and Loan Soc. v. DeLashmi |

(C.C., D. Or.) 67 F. 399; Graham v. Allen, 116 Or. 01,2

P. 1007. The presumption of contract arising under t!

section must necessarily presuppose a person capa

of contracting. - :

That the validity of a contract arising under this sq

ute is subject for judicial inquiry with respect to‘

capacity of veterans admitted to a hospital was obser

in United States v. Security-First Nat.’ Bank of

Angeles, supra (130 F. Supp. 521, 522), at page 522. ‘

follows: é

“No party has challenged the validity -of t

' agreerment on the ground that there. was no agr

ment as to the footnoted matter, and although a fog

note to an application for admission to a hospital isa

an exemplary way to establish privity of contract.

. the absence of challenge, it is sufficient. Consider!

that applicants for domiciliary care in. a hospital %

usually: sick and. often lacking acute mental

ception, the force of a footnote to the entry appliq

tion (the footnote purporting to create a special ©

oe

tract of unusual character) might be considerably

diminished, and frequently destroyed by a careful in-

quiry into the circumstances of.the execution. of the

application for domiciliary care. * * * Thatcon- ©

tracts of this character may be valid if, properly

entered into, is esas dh established by Supreme Court

adjudication.”

A différent underlying theery exists with respect to

the vesting in the United States of the “unexpended fed-

’ eral veterans’ pension funds in the estate of a, veteran

dying in a’ Veterans’ Administration facility intestate :

and without heirs, under the provisions of 38 U.S.C. (1952 _

_ed:).450. The intent and meaning of this statute is that

the pension is a qualified gratuity in which the federal

government has retained for itself a contingent rever-

sionary interest. The following cases are illustrative of

the reversion of accumulated unexpended veterans’ pen-

sions and benefits to the federal government: In re Lind-

quist’s Estate, 25 Cal. 2d 697, 144 P. 2d 438, 154 P. 2d 879;

Coakley v. =? General, 318° Mass. 508, 62 N.E. 2d

659.

_ Petitioner for writ of certiorari ‘has cited In re

Skriziszouski’s Estate, 382 Pa: 634,4J6 A. 2d,841; In re

Gonsky’s Estate, 79 N.D. 123, ‘55 N.W. 2d 60; and 7n re

at variance with the Oregon Supreme Court decision.

pouske opinion, 352 P. 2d 539, 547, 548, in the light of the

‘ol

; Bonner’s Estate, 192 Misc.-753, 80 N.Y.S. 2d 122, as being i

. - These cases were analyzed and discussed’ in the War- °

different basic theories underlying 38 U.S.C. 17-17j and .—

-38 U.S.C. 450, the Oregon court pointing out at page 547

_ that some courts had failed to observe the important dis-

4

x

aa oo a ee| '

‘ ; = ; |

tinction between the two theories. Also in the cases cite

_ by petitioner, all the incompetent veterans apparently

, were under guardianship as was likewise the situation in.

. Estate of Maguire, 13 D.& C 2d:247, 7 Fiduc. Rep. 701°

(Orphart’s Court of Philadelhia County), cited in the

petition for certiorari.

The Warpouske. caS®~bhecause of ‘its wnat facts, ap-

“plies only to that narrow class of cases where mentally

incompetent Yeterans, incapable of contracting, dying

intestate and withoytcheirs in a veterans’ hospital are

brought into the hospital without having a relative or a

, guardian of person to act for them or a court order for

_ their commitment to the hospital. since it.is well estab-

lished that 38 U.S.C. 17-17j, supra, is founded upon con-

tract, the statute can not apply to such incompetent

veterans thus involuntarily admitted. The result reached —

by the Oregon court in Warpouske’s estate would apply . -

only to narrow the class of such veterans and not to allins

competent veterans who might be. cared for-in Veterans’

Administration hospitals or institutions. |

; ae ; I

It being ‘well established that the provisions -of 38

U.S.C. (1952 ed,) 17-1%j are based upon contract, the

secqnd question presented by the petition concerning the

constitutionality of a provision having a self-operating

effect in the vesting in the United States of an incom-

. petent veteran’ Ss property is hypothetical.

The ¢ cases have repeatedly viewed the statute as based —

upon contract. Its purpose was to provide a form of stat-

,

@ .«

—

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= .

a

‘utory contract and not to effect a ‘self-operating suc-

ion or ‘devolution to the United States of the personal

property of a veteran dying intestate and without heirs in

a Veterans’ Administration facility. : ste .

* The recent case of In.re Turner’s Estate, 171 Cal. App.

«

the statute"as follows: | . , "dl

“* * * > This statute is not an attempt to regu-

late and control the devolution of property,,but is

2d 591, 341 P. 2d 376, 379, 1959, points gut the nature of

* , based upon contractual relationships. United States

- y, Gallagher, D.C.S.D. Cal., 97 F. Supp. 1014; In re —

Witte’s Estate, 174 Kan. 360, 255 P. 2d‘1039, 36 A.L.R.

2d 717; In re Gonsky’s Estate, 79 N.T® 123, 55 N.W.

2d 60; See United States v. Stevens, 392 U.S. 623, 58

, S. Ct. 388, 82 L. Ed. 484; Mauck v. United States, 9

- Cir., 94 F. 2d 745.” (Emphasis supplied)" |

The federal government has itself taken the position

that the statute is not‘one of escheat, as appears in In_re

Witte’s Estate, 1953, 174 Kan: 360, 255 P.2d 1039, 1044,

supra, where the government’s argument was as follows:

“Its [United States’], principal argument however

is that the-statute is not one of escheat or of the con-

trol of whd shall receive a decedent’s estate, but one

providing for a-contract, and that it bases 1ts claim

a contract authorized. by and executed under t

statute. In support it relies principally on United

- States v. Stevens, 302 U.S. 623, 58 S. Ct. 388, 82 L. ed.

“484. * * *” (Emphasis supplied), © .

The right of states to control probate and the devolu-

tion of property and escheats within their own territories

has long been recognized as a power belonging to.the

states. Mager v. Grima, 49 U.S. 490, 493,12 L. ed: 1168; -

United States v. Fox, 94 U.S..315, 320, 24 L. ed. 192. See °

| | 12

also United States v. Security-First National Bank of Lo

Angeles, 130 F. Supp. 521. No doubt this right of the

States was carefully regarded by the Congress in fram-

~ ing the statute and resting it upon contract.

However, in view of the fact that it has been repeat-

edly held that the provisions of 38 U.S.C, 17-17j are

contractuat and even the United States has in«the past

‘ taken the position that the statute is not one of escheat.

the question presented as to the constitutionality of auto-

matic vesting of the veteran’s property is h; ‘pothetical_

inasmuch as the statute is one based on contract and not

on the automatic vesting of property.

4

- CON CLUSION |

For the reasons 1s advanced, the respondent submits that

the petition’ for certiorari be denied.

?

da Respectfully. submitted,

SS rah

ROBERT Y. THORNTON.

Attorney General of Oregon -

CATHERINE ZORN

- Assistant Attorney General +

“i Attorneys for Respondent

‘

s

- se 13

-. APPENDIX A

38. US.C.17-17j (1952-ed.), the Act of June 25, 1910,

- 36 Stat. 736, as amended by the Act of December 26, 1941,

_ 55 Stat. 868, provides in pertinent-part: gf

: .- 5

& § 17. Vesting of.undisposed personalty in Unjted .

Sfates as trustees for General Post Fund.

Effective ninety days after December 26, 1941,

whenever any véteran*(admitted as a veteran) shall

die while a member or patient in any facility, or any

hospital while. being furnished care. or treatrnent

’ therein by the Veterans’ Administration, and shall not

. leave surviving him any spouse, next of kin, or heirs

entitled, under the laws of his domicile, to his personal

property as to which he dies intestate, all such prop-

erty; including’ money and choses in action, owned by

said decedent at the time of death and not disposed of

by will or otherwise, shall immediately vest in and be-

come the property of the United States as trustee for

the sole use and benefit of the General Post Fund, a

trust fund prescribed by section 725s (b)(45):of Title .

31. : | , naer

The foregoing provisions are conditions precedent

to the initial, and also to the further furnishing of care

or treatment by the Veterans’ Administration in a

* facility or hospital. The acceptance of Care or treat- .

ment by any veteran adniitted as such to any Vet-

erans’ Administration facility or hospital after ninety

days from December 26, 1941, and as well the con-

tinued acceptance of care or. treatment furnished by.

the Veterans’ Administration after said ninety days

- by any. veteran who is then receiving. the.same' shall -

constitute an acceptance of the provisions and condi-

tions of this Subchapter and have‘the effect of an as-

signment, effective.at his death, of such assets in ac-

cordance with and subject to the terms and provisions.

, of this subchapter and the regulations issued in ac-

cordance with and pursuant thereto. = = - Boots

Png

‘ in section 17 of this title owned by said Gecedent at

' fit of members.and patients while being supplied care »

- decedent so far as may be the valid claims of.creditors

_year from the. date of death, or within the time, to

‘law of the United States.

14

Ԥ 17a. Presumption from death in facility of eon-

- \ .. tract for disposition of property.

The fact of death of the.veteran (admitted as such)

in a facility or hospital, while being furnished care or

treatment therein by the Veterans’ Administration,

leaving no spouse, next of kin, or heirs, shall give rise

to a conclusive preSumption of a valid contract for .

the-disposition in accordance with this ~ ibchapter,

but subject to its conditions, of all property described

death and as to which he dies intestate.

: ¥ ~*~ *

_§17¢. Disbursements from Fund; pay ment ‘d

creditors. 4

Disbursements from the General Post Fund shall

be made by the Division of Disbursements, Treasury

Department, upon the order and within‘the discretion -

of the Administrator of Veterans’ Affairs for the bene-

or treatment by the Veterans’ Administration: in. any

facility or hospital, and this authority is not limited to

facilities or hospitals under direct administrative.con-. _

trol of.the Veterans’ Administration: Provided, how-

ever, That there shall be paid out of the assets “of the

against his estate that would be legally payable there- —

from in the absence of this subchapter and without the

benefit of any exemption statute, and which may be

presented to the Veterans’ Administration within one

the person, and in the manner required or permitted

by the law of the State Wherein - ‘administration, if.

any, is had upon the estate of the deceased veteran;

and also the proper expenses and costs of administra-

tion, fi»any: And provided further, That if the. de-

cedent’ s estate be insolvent the distribution to credi-

tors shall be in accordance with the laws of his

domicile, and the preferences and priorities pre-

scribed thereby shall govern, subject to any applicable

15

§ 17d. Disposition of remainder of assets; ac-

quisition of assets by the Administrator of

_ Veterans’ Affairs. ress

The remainder of such assets or their proceeds

shalt become assets of the United States ‘as trustee

for said: Post Fund and disposed .ef in accordance

with this subchapter. If there be administration upon

the decendent’s estate such assets, other than money,

upon claim thereof within the time required by law,

shall be by the administrator of the estate delivered

to the Administrator of Veterans’ Affairs or his au-

thorized representative, as upon final distribution;

and upon the same claim there shall be paid to the

Treasurer of the United States for credit to said Post —

- Fund any such money available for final distribution. ©

‘In the absence of administration, any. money, chose

in action, or other property of the deceased veteran

held by any person shall be paid or transferred to the

Administrator of Veterans’ Affairs upon demand by.

- him or his duly authorized representative, who shall

deliver itemized receipt therefor. Such payment or

‘transfer shall constitute a complete acquittance of.

the transferor with respect to any-claims’ by any ad-

ministrator, creditor, or next of kin of such decedent.

+S > * i

-

§ 17g. Notice to veterans of law.

2

The.Administrator of Veterans’ Affairs shall pre-

scribe a form of application for hospital treatment and

domiciliary care which shall include notice of the

' provisions of this subchapter. ‘Within ninety davs

after approval hereof similar notice shall be given to

each veteran then receiving care in any facility or

hospital as described. in this subchapter: Provided,

however, That this requirement shall be met by post-

ing of said notice with a copy of the prescribed form

in a prominent place in each building wherein pa-

tients or members:are housed. |

» ® _t~ 8

e 16 oe

- APPENDIX oo

Oregon Revised Statutes 120.010

Immediately upon the death of any. person .who

dies intestate without heirs, leaving any real, personal |

or mixed property, interest or estate in this state, the -

same escheats to and vests in the state, subject only

~ to the claims of the creditors-and-as

ORS 120.060 to 120.130; and the clear proceeds de--.

rived therefrom shall be paid into and become a part —

of the Common School Fund of this state and be

loaned or invested by the State Land: Board, as pro-

vided by law.

e *

se" 3

.

. J rr >

. s Ly, "

Fe a ee Lg ee ee ee, ee «Ca a i

Office-Supreme Court. U.S,

kt i eee

pemeetee ot eS

JAMES B. BROWNING. “Clerk

No. 329

= . °

“inthe Supreme Court ofthe Writed States

OcroBER TERM, a

4

a

= s

as

THE Unrrep Srares or AMERICA, aS TRUSTEE FOR THE . ifs

SoLe Use AND BENEFIT OF THE GENERAL Post Funp, igs

PETITIONER

‘ } ve )

' Sate ‘OF OREGON, ACTING BY AND THROUGH THE —

_ Srate Lanp Boarp, AND PortLanp Trust & SAVinas

: BaNK, ACTING BY AND THROUGH THE State. Lanp ~

SJ Boagp - :

a

In THE MAtrer oF THE Eérara or Apa B. 4

». WaRPOUSKE |

ON WRIT OF CERTIORARI 10 THE SUPREME COURT OF THE STATE

OF OREGON @.

qelsgi apatauian ai

_ ARCHIBALD COX, |

Solicitor General,

oases H. ORRICK, JR, ..

Assistant Attorney General,

_ ALAW 8.

. HERBERT E. MORRIS,

se ; + Attorneys,

. Department of — 1 ree 25, D.C.

‘

Opinions below - -- - - - eaeeuanswes- tok pitenaiind eines Gap

Surigdiction : ....-------.-- mr ee aie humney eee kaw ea

Questions presented _------- Sinhinaivbemacaas Fre ie?

.Constitutional and statutory provisions involved___-_____

I as enn bee Sank enthebetnesceekone fae ciee

Summary of argument___------___. in pam tore eee ee ree

NR Bid an dana nnedgtscevessnniesoedapaectonughas

; I. Under 38 U.S.C. 17-17j, the personal property of

all veterans, including those incompetent upon

admission, who die intestate and without heirs

while patients in Veterans Administratian facil-

ities, vests in. the United States for use of the

General Post Fund ------.-.-..---. Maw Giaattes ora:

A. The statutory provisions______- eheetinek

B. The legislative history____...___________-

C. The case law em administrative prac tices _

II. 38 U.S.C. 17-17j, which provides for the vesting of

.

any veteran’s estate in the Government for use of -

the Post Fund if he dies mtestate and without

heirs while a ‘patient in a V.A. facility, does not

violate.the Federal Constitution. ____- elements :

A. The Tenth Amendment---*°-_.___.____--

‘B. The Fifth Amendment_..__-.-_-________

Conclusion .....------ Se ne hntenaeuntng —

CITATIONS

Caste:

es ia Sc dca Sacwnnd vabawckdetienknx ns

Abbot v. . Morgenthau, 93 F. 2d 242, certiorari denied, |

33

48

35° -

- Bonner’s Estate, In re, 192 Mise. 753, 80 N.Y.S. 2d 122. 30, 31

@alhoun vy. Massie, 253 U.S. 170, ---------- Miaaee 38

Si Bowles, 327 U.S. 92. teeecele-t.- 15/17, 34, 47

oakley v. Attorney General, 318. Mass. 508, 62 N.E.

oer ___ RE aE ae ene ee CT, Tee eco 35

Fairbank v. United States, 181 US 5 5 283° beeen a 44

5%:39660—61-—1 - ow