3. Where payment was under construction of law-Continued. (d) Clerical error.

Overpayment must be refunded if the error was a clerical one, made in inserting wrong rate of pension in the brief. Ebenezer Basset (Sec. Schurz), 6 P. D. (o. s.), 378.

When, by reason of a clerical error, the rate of pension was made greater than pensioner had been adjudged entitled to, the reduction of the rate to the correct amount was proper, and the right of the Government in such cases to withhold all pension until reimbursed for overpayments is well settled. Artemus J. Steenberge (Asst. Sec. Reynolds), 8 P. D., 145. (e) Payment covering a period of service.

It being discovered in a claim for increase that the pensioner had drawn pension for a period during which he was in the military service, on allowance of increased pension, pension was withheld to reimburse for the payments covering such period: Held, Such payment was illegal and a mistake of fact, but the accruing pension on account of disability can not be withheld to reimburse the Government for such illegal payment, the pensioner being ignorant of any violation of law in receiving it. Citing opinion of Attorney-General Butler, Secretary of War ad interim, in re Captain Vernon, Pension Laws, etc. (1849), 106. James Moss (Actg. Sec. Bell), 8 P. D. (0. s.), 112.

Overruled: s. c. following.

James Moss, 8 P. D. (o. s.), 112, is overruled, in view of the report of the Third Auditor that the pensioner, in each voucher presented for payment of his pension for the period to which his appeal relates, made oath that he had not, during said period, been employed in the Army or Navy. He, therefore, perpetrated a fraud, and the pension should be withheld for the purpose of reimbursement. s. c. (Sec. Kirkwood), 9 P. D. (0. s.), 110.

See also SUBTITLE following.

(ƒ) Fraud of pensioner.

Except where overpayment of pension has been obtained by fraud, I think it most agreeable to the spirit of the pension laws to treat the overpayment as a debt, which is no bar to payment of pension, according to the equity of the act of May 20, 1836. Richard Vernon (Sec. Butler) Pension Laws, etc. (1849), 106.

Sections 1766 and 4734, Revised Statutes, do not apply to pension money paid a pensioner while he was in service, but such illegal payment is a fraud on the part of the pensioner, under section 4724, Revised Statutes, and reimbursement therefor may be made by withholding legal payments falling

3 Where payment was under construction of law-Continued. (f) Fraud of pensioner-Continued.

due to the pensioner. James Moss, 8 P. D. (o. s.), 112, overruled so far as it may be in conflict herewith. Cyrus Pike (Asst. Sec. Hawkins), 2 P. D., 65.

The claimant, prior to the allowance of pension for ventral hernia, stated that he had a lump or tumor on his abdomen prior to enlistment, and the Bureau, after special examination, decided that said lump or tumor was not a hernia, but subsequently, after further investigation, reversed its former deci sion and terminated such pension: Held, That the facts do not justify imputing fraud to the claimant, and the withholding of current pension due him for another disability in order to recover the amount paid for hernia was erroneous. Norman Daris (Asst. Sec. Reynolds), 8 P. D., 288.

(g) Payments to widow after her remarriage.

Where a widow drew her pension after her remarriage, the amount thus wrongfully paid can not be recovered from the pension of the minor children under the latter clause of section 33 of the act of March 3, 1873, which governs the case. Minors of Louis Roth (Actg. Sec. Cowen), 1 P. D). (o. s.), 156.

Where a widow pensioner continues to draw pension after her remarriage, the amount thus overpaid may be deducted from the amount due to the minor children if she and the guardian of said children consent in writing thereto, distinguishing this case from the case of Louis Roth, in that case there was no consent of either the widow or of the guardian. Widow of Daniel Forstner (Sec. Delano), 1 P. D. (o. s.), 387.

Where a widow continued to draw pension after her remar riage the pension, subsequently allowed from the date of her remarriage to minor children who were in her care and custody and were supported by her during the entire period for which she drew pension subsequent to her remarriage, may be withheld for such period. Minors of James Gardner (Sec. Teller), 9 P. D. (0. s.), 344.

Where a soldier's widow has drawn pension for herself and minor children after her remarriage, in contravention of law, and is subsequently granted a pension by reason of her second husband's service and death, in determining the amount to be withheld to reimburse the Government she should be credited with so much of such moneys as the children would have been entitled to receive from the date of her remarriage until the last surviving child attained the age of 16 years, where such children have resided with and been supported by her, as well as with the amount to which she was entitled to the date of her remarriage. Caroline Becker (Asst. Sec. Reynolds), 7 P. D., 365.

3. Where payment was under construction of law-Continued. (k) Two pensions to one person.

A person to whom a pension certificate was granted as the widow of a soldier in the war of the rebellion was also granted a pension certificate as the widow of a soldier in the war of 1812, and drew pensions upon both certificates from March 9, 1878, to December 3, 1883. The Commissioner of Pensions, on discovering this, required her to make an election, and, she having elected to hold the first-mentioned certificate, he ordered the amount which had been paid to her upon the other certificate to be withheld, in installments of $6 per month, from payments thereafter, and issued an order to the pension agent accordingly: Advised, That the order made in this case, being within the general jurisdiction of the Commissioner, is obligatory on the pension agent, and that the accounting officers of the Treasury have no power to disallow payments made by the agent pursuant thereto. Atty. Gen. Garland, 19 Op., 215.

In this case the whole of the monthly pension under the certificate which the pensioner elected to hold should be withheld until the amounts so withheld shall equal the sum paid the pensioner under the other certificate. Ibid.

(i) Leading opinion by Assistant Attorney-General Shields.

Pension paid in consequence of fraud on the part of the pensioner or of a mistake of fact in the adjudication of the claim may be recovered by withholding accruing pension; but there can be no such recovery where the pension was paid in cousequence of an erroneous judgment merely, all the facts being in evidence, and the law being capable of construction. Citing and reviewing at length the various decisions on this subject. Asst. Atty. Gen. Shields, 6 P. D., 297.

(j) Payment through mistake of pension agent.

Where a pension agent by mistake overpays a pensioner such overpayment can not be withheld from future payments to such pensioner, but such pension agent must make good to the United States the money so erroneously paid such pensioner. Pension Agent Barclay (Asst. Sec. Bussey) 5 P. D., 175. Contra: W. W. Dudley, 6 P. D., 205; Op. Asst. Atty. Gen., 6 P. D., 297; W. W. Dudley, atty., 7 P. D., 78.

Where, in consequence of an unintentional error, a pension agent overpays a pensioner, the Commissioner may order such agent to withhold from subsequent payments to such pensioner a sufficiency of money to reimburse the Government for such overpayment, and thereby correct the error. Pension Agent Clements (Asst. Sec. Bussey), 5 P. D., 323.

4. Overpayments not recoverable from pension under other laws. Payments of an allowance, made under the act of March 2, 1867, covering a period while the recipient was in a subsequent naval service, can not be recovered from pension due under a claim filed under the general law or one filed under the act of June 27, 1890. John Spencer (Asst. Sec. Bussey), 6 P. D., 167. (a) Recovery from pension under act of June 27, 1890.

The act of June 27, 1890, provides pension upon certain conditions peculiar to itself-a pension for dependence not necessarily due either to the line of duty or to the service, but simply to the lack of present means or ability for support; and a pension allowed under this dependence act is not liable as an offset for any erroneous pension payment theretofore made by the Government under the general pension laws. William Numer (Asst. Sec. Bussey), 5 P. D., 168.

Overruled: See decision following.

Pension granted under act of June 27, 1890, may be withheld to reimburse the Government for moneys paid under the gen eral law by reason of fraud or mistake. Citing opinion of Assistant Attorney-General Shields, 6 P. D., 297; Cyrus Pike, 2 P. D., 65; Bond and Engle, 4 P. D., 263, and overruling William Numer, 5 P. D., 168, and affirming ruling 246. In re W. W. Dudley, attorney (Asst. Sec. Bussey), 6 P. D., 205.

The Government may reimburse itself for money fraudulently obtained and erroneously paid on a pension under the old law from the pension granted under the act of June 27, 1890. William W. Dudley, 6 P. D., 205, reaffirmed. Martha A. Rogers (Asst. Sec. Reynolds), 7 P. D., 90.

5. Attorney's fee payable only after reimbursement.

Where a pension under the act of June 27, 1890, is withheld for the purpose of reimbursing the United States for money advanced claimant under au allowance of pension unwarranted under the general law, the attorney in the new law claim is entitled to a fee, but the same may not be paid until the United States has been reimbursed in full. W. W. Dudley, 6 P. D., 205, reaffirmed.

Samuel W. Keys

(Asst. Sec. Reynolds)

See also ACCRUED PENSION; CONSTRUCTION OF LAWS; EVIDENCE; FRAUD AND MISTAKE; MINORS.

REJECTED RECRUIT.

See SERVICE.

REJECTION.

See APPEALS; NOTICE; PRACTICE.

1. Bars pension, generally.

REMARRIAGE.

(a) What is sufficient proof.

(b) Under act of March 3, 1865.

(c) While application is pending.

(d) Contra.

(e) Under act of March 3, 1873—widow, minor.

(f) Under act of March 9, 1878.

(g) Under act of January 29, 1887.

(h) Under act of June 27, 1890—mothers.

(i) Under act of June 27, 1890—widows.
(j) Under act of July 27, 1892.

2. Revolutionary widow.

3. Prior to July 27, 1868-limitation.

4. Presumption of-under section 4719, Revised Statutes.

1. Bars pension, generally.

A dependent mother pensioned under the act of July 14, 1862, forfeits such pension by remarriage. Atty. Gen. Bates, 10 Op., 341.

(a) What is sufficient proof.

The living and cohabiting of a widow pensioner with a man and being known and recognized as his wife constitute such a remarriage as will deprive her of her pension. Mary Banks (Sec. Schurz), 4 P. D. (o. s.), 438.

Where the question of remarriage of widow of a soldier is involved, cohabitation, as a wife with some man estops her from obtaining a pension. Mother of Joseph A. Winn (Sec. Schurz), 5 P. D. (o. s.), 110.

Even though no marriage ceremony is shown to have been performed, the mutual recognition of the parties as husband and wife, their reputation as such, and the admissions of the wife estop her from claiming pension as soldier's widow. Harriet N. Kingsbury (Sec. Schurz), 7 P. D. (o. s.), 19.

Where a widow pensioner lives and cohabits with a man as his wife, and they acknowledge themselves to be husband and wife, and are so known in the community in which they live, she is estopped from further drawing pension. Louise Romere (Sec. Schurz), 7 P. D. (o. s.), 305.

(b) Under act of March 3, 1865.

Under the act of March 3, 1865, a widow loses and minor child acquires pensionable status upon the widow's remarriage without payment to her of any part of pension, and her pensionable status is not revived by the act of June 7, 1888, as to commencement of widow's pension. Widow of William S. Colderan (Asst. Sec. Bussey), 4 P. D., 418.

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