The National tribune., 1903-12-10

from the Government while receiving q
salary from the Government; and for IL
years preceding his death neglected and re-
fused TO draw, receive or accept the pen
sion.
Section 4I19 provides that: 'The failure
of any pensioner to claim his pension Tor
three years after the same shall have be-
come due shall be deemed presumptiye
evidence that such pension has legally
terminated by certain specified events;
which legal termination of the pension
would debar restoration to the rolls tor
such terminated pension.
The decision OH the appeal from the
holding of the Pension Bureau denying
her right 10 said pension says asst Sec
Miller. Aug. Is. 1903, serial number 26):
.'The principal question herein is one
of law--the legal construction to be given
To the provision of said section 4l19 that
the Soldier. the widow, or the child claim
ing under that section must accompany his
or her application Hereunder with 'evi-
dence satisfactorily accounting for the fail
ure TO claim such pension.
The statute does not say that the claim
ant must give satisfactory explanation
but only that he must satisfactorily ac-
count for the failure to draw such pension
and the statute having made such failure
the basis of legal presumption that II
was due to Il certain fact, VIZ, the lega
termination of the pension. it would seem
10 have been the clear intent of Congress
that pension should be restored upon satls'
factory rebuttal merely of said presump'
ton by showing that no legal cause Tor
termina ton of pension in fact existed
Even in law and equity mere abandon
ment or mere waiver does not affect the
.egal title in the thing abandoned or
waived. but such title is generally lost
only when the rights of third parties be-
come involved. No third party S
rights being involved in pensioners aban-
dOnment or waiver of his pension, such
abandonment or waiver would not be le-
gally binding upon him SO as to estop OF
Jebar him from retracng it and resuming
his pension if he should see fit to do So
Whatever the pensioner might do by
abandonment. waiver, or gift of his pen
sion to bind himself his action can not
under this statute, bind the one entitled
Hereunder also to claim and receive the
pension which lie failed to claim or receive
there being, as stated, no privity between
them. Such one takes as himself or her
self direct and immediate beneficiary
under the law and not as the pensloner
representative.
IF II be held that Il pensiOner may b!
gift to the Government of his pension thus
debar the one entitled to his accrued pen
sion from claiming under this statute after
his death. it makes this grant to the latter
Intellectual and defeats it wholly Such a
result is to he avoided if possible.
THE presumption of legality as to origi.
nal title to pension remains unimpaired
and unaffected. and it is this legal title
which Congress has evidently recognized
and sought to conserve by giving 1t q
qualified and limited vested nature, so as
to secure the pension Hereunder to one ol
the ntiier of the specified beneficiaries, pro-
vided only that there has or had not bee!
legal termination of the right to pension
in some of the ways specified IN the pen
sion laws.
1T is therefore held that there is sat
isfactory accounting, within the meaning
of said section. of the failure of pen
sioner for three years to claim his pension
when it satisfactorily appears in evidence
that his right to pension had not legally
terminals ted in some of said ways. and thai
title to restoration under that section is
prima facie established Except as to proof
of continuance of disability upon such re-
buttal of the presumption, raised under
said section by such failure to claim thu
pension, that the right thereto had legally
terminated. it being then, as always, how
ever. within the power and province Ol
the Commissioner of Pensions and of the
Department to investigate as to the merits
of the original title, should either see fiji
10 do so, to ascertain whether pension was
properly allowable originally, for the GER
tifcate of pension is. as stated, only prima
facie evidence of title and of the facts
necessary to the allowance Of the pension
"The rejection of this claim is reversed
and you will readjudicate it in accordance
with the foregoing views"