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January 4, 1940


The opinion of the court was delivered by: LETTS

LETTS, Associate Justice.

On Rehearing.

Attention is first directed to the order of this court passed on the seventh day of December, 1939 substituting as party plaintiff William Ernest Clark, administrator de bonis non cum testamento annexo of the estate of James E. Potts, deceased, in the place and stead of T. Alan Goldsborough, administrator be bonis non cum testamento annexo of James E. Potts, deceased, who has resigned.

 In my memorandum opinion filed March 2, 1939, I held that plaintiff's right of action accrued on April 26, 1925 upon the death of Julia E. Clark, the veteran's foster mother. I then ruled that this action, filed December 28, 1937, was not timely brought and that the court lacked jurisdiction to hear and determine the issues presented.

 The matter is again brought to my attention by plaintiff's motion for a rehearing on his motion for judgment. He suggests that even if I was right in reaching the conclusion that the insurance matured to the estate of the veteran as of April 26, 1925, it is a cause of action which accrued after the death of the veteran and that no claim could have been asserted in behalf of his estate until after the death of Julia E. Clark and that the limitation of the statute could not begin to run until an administrator was appointed with power to claim the insurance benefits.

 It appears from the agreed statement of facts that the veteran died on March 9, 1918 and that his will was admitted to probate by the Orphans' Court of Baltimore City, Maryland, on April 26, 1918. The veteran did not in his will nominate an executor thereof, and it must be assumed that the Probate Court made no orders for the administration of the estate until it appointed Fred R. Wallace, administrator de bonis non cum testamento annexo. (The date of this appointment is not shown in the statement of facts; but I am advised in oral argument that the order of appointment passed in 1933 and prior to July 15th. of said year.) On July 15th, 1933 Wallace as administrator wrote a letter to the Veterans Bureau making inquiry as to insurance due the estate and on August 23rd, 1933 filed a formal claim therefor.

 Plaintiff now contends that Section 19 of the World War Veterans' Act of 1924, as amended, 38 U.S.C.A. ยง 445, should be construed to be a statute of limitations and that so construed the statute was tolled until the appointment of Wallace as administrator of the veteran's estate in 1933.In support of his position he relies upon the rule that a cause of action which accrues after a decedent's death is not complete and does not arise and exist so that a statute of limitations can begin to run upon it until an administrator is appointed who can bring suit. A statement of this principle will be found in 24 Corpus Juris, Section 1915.

 I recognize the correctness of this rule in its proper application, but do not agree that it is controlling as applied to the jurisdictional question here. The statute involved is not merely one of limitations but in a more important aspect grants the consent of the United States to be sued. Since the sovereign may not otherwise be sued consent when given is not absolute but is subject to all conditions imposed by Congress. Happily the statute considered has been construed and its meaning made clear. Such construction finds it the intention of Congress to put a time limitation upon the institution of suit. United States v. Towery, 306 U.S. 324, 59 S. Ct. 522, 83 L. Ed. 678. In the opinion the statute is described as one of repose. It was intended to prescribe a uniform rule of limitation for suits on contracts of war risk insurance.

 The language of the statute is construed to confer but one right, to benefit payments, and but one critical contingency which conditions that right, namely, the occurrence of permanent total disability or death while the policy remains in force. In the opinion it is said that all other contingencies, which condition actual payment of the benefits to one person or another, are of minor importance and not likely to be the subject of disagreement with the Veterans Administration.

 The writer of the opinion points out the Congressional purpose is to guard the government against the difficulties attending the defense of state claims. If the rule urged by this plaintiff be applied to the facts of his case it is conceivable if not obvious that the claim here made, twelve years after it accrued to plaintiff, might as well be sued on at any future time without limit.

  I think plaintiff's position is untenable from another view of the case. It is plain that any heir or person beneficially entitled to share in any recovery by the administrator was in law authorized to claim the insurance benefits and bring suit therefor in his own right and for the benefit of all persons having an interest in the proceeds of the contract. Johnson v. United States, 10 Cir., 102 F.2d 729; March v. United States, 4 Cir., 97 F.2d 327; United States v. Tate, 4 Cir., 99 F.2d 307; United States v. Powell, 4 Cir., 93 F.2d 788. The reasoning of these cases leads to the conclusion that the running of the statutory period of limitations was not suspended pending the appointment of an administrator.

 Plaintiff's motion for rehearing will be overruled.


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