#### MARY CATHERINE SINGLES v. THE UNITED STATES

[No. E-436.

Decided January 11, 1926]

*On the Proofs*

*Adjusted compensation act; jurisdiction; gratuity.*— The claim of a beneficiary for adjusted compensation under the World War adjusted compensation act of May 19, 1924, is a claim for a gratuity within the jurisdiction of the Court of Claims and is notxa claim for a pension.

*Same; personal application.*— Where a World War veteran mates out an application in due form claiming the benefits of the act of May 19, 1924, and it is not forwarded to the Secretary of War until after his death, the filing of the application was not the act of the veteran, the beneficiary named therein did not become such under the law and can not recover the benefits thereof.

*Practice and procedure; conditions precedent to allowance of*claim.— Where a statute prescribes certain conditions precedent to the allowance of a claim, such conditions must be performed before relief can be granted by the Court of Claims.

*The Reporter’s*statement of the case:

*Mr. William Sabine*for the plaintiff.

*Mr. George D.*Brabson, with whom was *Mr. Assistant Attorney General Berman J.*Galloway, for the defendant.

*434The court made special findings of fact, as follows:

I. Perry Tyrone Singles was a veteran as defined in section (2) of an act of Congress approved May 19, 1924, known as the World War adjusted compensation act, and married plaintiff in June, 1924.

II. Perry Tyrone Singles served overseas as first lieutenant, Q,. M. C., from December 18, 1911, to May 14, 1919, and in the United States from August 15, 1917, to December 17, 1917, and from May 15, 1919, to May 16, 1919.

III. Perry Tyrone Singles had a credit of over $50.00, according to the computation under the provisions of Title II of the World War adjusted compensation act, termed an adjusted-service credit.

IY. Perry Tyrone Singles, except as to finger prints, completely and duly made out an application, addressed to the Secretary of War, claiming the benefits of the World War adjusted compensation act, which application conformed to all the requirements of said act and was dated November 20, 1924.

Y. Perry Tyrone Singles died on December 6, 1924, and the application referred to in Finding IV was thereafter forwarded to the Secretary of War.

VI. On December 24, 1924, the application of Perry Tyrone Singles claiming the benefits of the World War adjusted compensation act was received in the office of the Secretary of War.

VII. After the receipt by the Secretary of War of the application referred to in the preceding finding, he transmitted to the Director of the United States Veterans’ Bureau the application and a certificate setting forth that Perry Tyrone Singles was a veteran, his name and address, the date and place of his birth, and the amount of his adjusted-service credit, together with the facts of record in his department upon which such conclusions were based.

VIII. Upon receipt of the certificate referred to in the preceding finding from the Secretary of War, the Director of the United States Veterans’ Bureau proceeded to extend the benefits to which Perry Tyrone Singles was entitled, provided for in Title V of the World War adjusted compensation act, and issued an adjusted-service certificate, *435dated January 1, 1925, No. 1,283,269, for $1,575.00, Perry Tyrone Singles, application No. 2,867,585, said certificate certifying that pursuant to the World War adjusted compensation act and in conformity with the laws of the United States the amount of $1,575.00, less any indebtedness lawfully due thereon, shall become due and payable on January 1, 1945, to Perry Tyrone Singles or, upon his death prior to January 1, 1945, said amount shall become due and payable to the beneficiary named by him, and that the amount due will be paid upon presentation of the certificate with the form “Demand for payment” on the reverse side thereof, duly executed with proof of identity.

IX. Plaintiff was named beneficiary by Perry Tyrone Singles.

X. As beneficiary plaintiff duly indorsed the “ Demand for payment ” pursuant to the provisions of the adjusted-service certificate and duly presented it.

XI. After the receipt of the “ Demand for payment ” of the plaintiff, there was issued and forwarded her a check for $1,575.00, the amount of the adjusted-service certificate, drawn on the Treasurer of the United States, No. 1102, dated March 27, 1925, payable to plaintiff.

XII. Plaintiff deposited the check on the Treasurer of the United States for $1,575.00 with the Dayton Savings Bank & Trust Company on March 30, 1925, for collection.

XIII. Payment of the check for $1,575.00 was stopped by order of the Comptroller General addressed to the Treasurer of the United States and the check returned to plaintiff.

The court decided that plaintiff was not entitled to recover.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff sues to recover the amount of an alleged adjusted-service certificate in which she was named as beneficiary, provided for in the World War adjusted compensation act, 43 Stat. 121. She contends that the court has jurisdiction of the case as being that of a claim founded upon a law of Congress, and that there is no exclusive or any other remedy provided in the act.

*436On the other hand, defendant insists (1) that the claim is one “ arising out of the pension laws,” and for that reason is not within the court’s jurisdiction, and (2) that the application relied upon by plaintiff was filed after the veteran’s death and there was no compliance with the adjusted compensation act.

If the claim be construed as a pension the court’s jurisdiction is expressly excluded by the organic act. Section 145, Judicial Code. But in cases of a mere gratuity granted by a statute this court has frequently granted relief. See *Semple ease,*24 C. Cls. 422; *Mumford*case, 31 C. Cls. 210; *United States*v. *Realty Co.,*163 U. S. 427, 441. See the many “ extra pay ” cases growing out of Spanish War, 39 C. Cls. 569, based upon *Hunt ease,*38 C. Cls. 704. It is to be borne in mind, however, that in no event can the court be called upon to perform executive duties or treat them as performed when they have been neglected. See *McLean's case,*95 U. S. 750, 753. In this case it was said that courts can not enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties, which he has failed to perform. See *also Dunlap case,*173 U. S. 65, 70.

It is not necessary, however, to a proper decision of the case before us to decide that this court has no jurisdiction of any claim arising under the World War adjusted compensation act, because if it be conceded that plaintiff’s claim is one that this court may consider, it would yet be true that the facts present an insurmountable obstacle to any recovery. When a case properly comes here under this phase of its jurisdiction the court must apply the law to the established facts, whether these are ascertained from the evidence or are stipulated. The case becomes one against the United States, which should be considered upon its merits. See *Mcdbury case,*173 U. S. 492, 500; *McKnight case,*13 C. Cls. 292, 310; 98 U. S. 179; *McLean case,*226 U. S. 374; *Emery case,*237 U. S. 28.

In the instant case the facts are stipulated. It appears from them that the veteran died before the supposed application was forwarded to the Secretary of War. According to the stipulation he had “ completely and duly made out an *437application addressed to the Secretary of War claiming the benefits ” of the act, which conformed to all of its requirements (“ except as to finger prints ” — whatever that phrase may mean) and was dated November 20, 1924, the plaintiff being therein .named as beneficiary. But' the veteran died on December 6, some 16 days after the application was thus made out. It was not filed or forwarded in his lifetime, nor did the veteran authorize anyone else to file or present it for filing. It was forwarded to the Secretary after his death, and was received in the Secretary’s office December 24, 1924. There is no suggestion of a wrong or an attempted wrong by anyone. It may be assumed that the application was in the veteran’s possession or among his effects when he died. At any rate it does not appear that he ever committed it to anybody as his compliance with the act, which, in section 301, requires the filing of an application claiming its benefits.

So far as the facts show, the application, though filled out as stated, was under his absolute control at the time of his death, subject to his change of the beneficiary (whom the statute, section 501, gives him the right to change), subject also to be withheld by him entirely as an application. No one could do after his death the essential thing which he had omitted to do. In the absence of some statutory extension of it, the right to file an application naming a beneficiary ceased with his death. See *B. & O. Railroad*v. *Joy,*173 U. S. 226, 229; *Martin*v. *B. & O.*Railroad, 151 U. S. 673, 697. It is provided in section 601 for the procedure by the veteran’s dependents in case of his death, without making application under section 302. This right of his dependents can not be ignored. The act prescribes that the application shall be made (1) personally by the veteran, or (2) in case physical or mental incapacity prevents a personal application, then by such representative of the veteran and in such manner as the Secretary of War and the Secretary of the Navy shall jointly by regulation prescribe. There is some significance to be attached to this requirement that a personal application be made. It must be the veteran’s own act. The filing of it with the Secretary of War may not, in the very nature of things, at all times be *438done “ personally ” by the veteran, but the filing must also appear to be the voluntary act of the veteran, unless he be suffering from the incapacity mentioned.

These required conditions, even if formal, must be complied with before' suit can be maintained against the United States. *Rock Island, etc., R. R.*case, 254 U. S. 141, 143. Thei plaintiff, suing in her own right as beneficiary under an application that in legal contemplation never became such, can not recover. See *Mumford’s case,*supra.

The petition should be dismissed, and it is so ordered.

Gkaham, *Judge;*Hat, *Judge; and*Booth, *Judge,*concur. Downet, *Judge,*concurs in the result.