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widow remarry, the child or children shall be entitled from the date of remarriage."

Section 4703, Revised Statutes (U. S. C. Title 38, sec. 193), provides that

"The pensions of widows shall be increased from and after the twenty-fifth day of July, eighteen hundred and sixty-six at the rate of two dollars per month for each child under the age of sixteen years, of the husband on account of whose death the claim has been, or shall be, granted. And in every case in which the deceased husband has left, or shall leave, no widow, or where his widow has died or married again, or where she has been deprived of her pension under the provisions of the pension-law, the pension granted to such child or children shall be increased to the same amount per month that would be allowed under the foregoing provisions to the widow, if living and entitled to a pension: * *

The Act of March 3, 1915, c. 83, 38 Stat. 940, as amended by Act of August 29, 1916, c. 417, 39 Stat. 556, 585 (U. S. C. Title 38, sec. 231), provides that:

"In all cases where an officer or enlisted man or student flyer of the Navy or Marine Corps dies, or where a student flyer or an enlisted man of the Navy or Marine Corps is disabled by reason of any injury received or disease contracted in line of duty, the result of an aviation accident, received while employed in actual flying in or in handling aircraft, the amount of pension allowed shall be double that authorized to be paid should death or the disability have occurred by reason of an injury received or disease contracted in line of duty not the result of an aviation accident."

Section 2 of the Act of May 1, 1926, c. 209, 44 Stat. 382 (U. S. C. Title 38, sec. 364a), provides as follows:

"The widow of any officer or enlisted man who served ninety days or more in the Army, Navy, or Marine Corps of the United States during the war with Spain, the Philippine insurrection, or the China relief expedition, between April 21, 1898, and July 4, 1902, inclusive, * and was honorably discharged from such service, or, regardless of the length of service, was discharged for or

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died in service of a disability incurred in the service in line of duty, such widow having married such soldier, sailor, or marine prior to September 1, 1922, shall, upon due proof of her husband's death, without proving his death to be the result of his Army or Navy service, be placed upon the pension roll at the rate of $30 a month during her widowhood. and any widow or former widow mentioned in this section shall also be paid $6 a month for each child under sixteen years of age of such officer or enlisted man, and in case there be no widow or one not entitled to pension under any law granting additional pension to minor children the minor children under sixteen years of age of such officer or enlisted man shall be entitled to the pension herein provided for the widow and in the event of the death or remarriage of the widow or forfeiture of the widow's title to pension the pension shall continue from the date of such death, remarriage, or forfeiture to such child or children of such officer or enlisted man until the age of sixteen years: * *

Under either the provisions of sections 4702 and 4703, Revised Statutes, as amended, or the provisions of the Act of May 1, 1926, supra, a single pension is provided, the amount of which is, in part, measured by the number of minor children under sixteen years of age. The entire amount of this pension goes to the widow, if there be one entitled, or, if not, to the children until they reach the age of sixteen. In this case the pension goes to the widow, and the additional amount allowed "for" the minor child is granted, not to the child or for the child's use, but to the widow because of the existence of the child. It has been held that the minor child has no right or title thereto, and may not require the widow to account to it therefor. In Creekbaum v. Sohner, 1 Ohio N. P. 34, the court, speaking of the "$2 per month for each child" allowed the widow by section 4703, Revised Statutes, said:

"It seems clear to the Court that the defendant, the widow of John Sohner, properly received this money as her own pension; that she had a right to use it as her own, and the plaintiff has no interest in the money, and no right of action would lie in her behalf for the same."

After the allowance of a pension to the widow, the minor child under the age of sixteen years has a contingent interest only in the pension, its interest being contingent on the remarriage or death of the mother, or the suspension of her pension (see section 4706, Revised Statutes) before the child reaches the age of sixteen years. Upon the happening of the contingency, the child succeeds to the entire pension of the widow, inclusive of the additional allowance made for the child. Sections 4703, 4706, Revised Statutes; Act of May 1, 1926, section 2, supra.

It is apparent, therefore, that the pension allowable to the widow, either under sections 4702 and 4703, Revised Statutes, as amended, or under the Act of May 1, 1926, supra, including the amount allowable to the widow for each child under sixteen years of age, constitutes one pension under each Act. Each pension is, in my judgment, indivisible. In certain circumstances the widow receives it, and in other circumstances the child receives it, but there is no provision for its payment in part to the widow and in part to the child.

Section 4715, Revised Statutes (U. S. C. Title 38, sec. 25) provides that

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Nothing in this Title shall be so construed as to allow more than one pension at the same time to the same person, or to persons entitled jointly; but any pensioner who shall so elect may surrender his certificate, and receive, in lieu thereof, a certificate for any other pension to which he would have been entitled had not the surrendered certificate been issued. *

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As the widow of Major Lutz is entitled to one pension for herself and her minor child either under the provisions of sections 4702 and 4703, Revised Statutes, as amended, or under the provisions of the Act of May 1, 1926, supra, she must, in my judgment, elect the statute under which she will apply. She may not elect to receive a part of her pension under one statute and a part under another. To permit her to do so would be to permit the applicant to receive two pensions in violation of the provisions of section 4715, Revised Statutes, supra.

I have the honor to advise you, therefore, that the claimant is not entitled, under the facts stated, to receive a pension

of $6.00 per month for her minor child under the Act of May 1, 1926, supra.

Respectfully,

WILLIAM D. MITCHELL.

To The SECRETARY OF THE INTERIOR.

PENSION CLAIM OF WILLIAM A. SHAW

The right of William A. Shaw to a pension under the Act of June 5, 1920 (41 Stat. 982), on account of service rendered in the Spanish-American War, the Philippine Insurrection, and the China Relief Expedition, and partial disability (disability to earn a support by manual labor), is not affected by reason of his retirement without pay under the Emergency Officers' Retirement Act (45 Stat. 735).

DEPARTMENT OF JUSTICE,
January 13, 1930.

SIR: I have the honor to comply with your request of August 21, 1929, for an opinion upon the question whether one William A. Shaw, who served ninety days or more in the war with Spain, the Philippine Insurrection and the China Relief Expedition, and who was allowed a pension because of such service under the Act of June 5, 1920, 41 Stat. 982, on account of partial disability (inability to earn a support by manual labor), is entitled to continue to draw such pension after having served as an emergency officer in the World War and having been retired without pay under the Emergency Officers' Retirement Act of May 24, 1928, 45 Stat. 735, section 1 of which provides:

66* * * That all persons who have served as officers of the Army, Navy, or Marine Corps of the United States during the World War, other than as officers of the Regular Army, Navy, or Marine Corps, who during such service have incurred physical disability in line of duty, and who have heretofore or may hereafter be rated less than 30 per centum and more than 10 per centum permanent disability by the United States Veterans' Bureau, for disability resulting directly from such war service, shall, from date of receipt of application by the Director of the United States Veterans' Bureau, be placed upon, and thereafter continued

on, the appropriate emergency officers' retired list, created by this Act, with the rank held by them when discharged from their commissioned service, but without retired pay, and shall be entitled only to such compensation and other benefits as are now or may hereafter be provided by law or regulations of the United States Veterans' Bureau, together with all privileges as are now or may hereafter be provided by law or regulations for officers of the Regular Army, Navy, or Marine Corps who have been retired for physical disability incurred in line of duty.

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Mr. Shaw served ninety days or inore in Company L, Fifth Ohio Infantry, during the war with Spain, the Philippine Insurrection and the China Relief Expedition, and on February 1, 1924, was allowed pension because of such service under the Act of June 5, 1920, supra, on acount of partial disability (inability to earn a support by manual labor). He served as captain of infantry during the World War from appointment May 11, 1917, to discharge, October 30, 1920. On account of disability incurred in such service he was awarded and received compensation under the War Risk Insurance Act, as amended, 40 Stat. 609, 611, until he was allowed the pension above mentioned. While continuing to receive the pension, he applied for and, on July 10, 1928, was granted retirement without pay under the Emergency Officers Retirement Act, supra. On April 26, 1929, the Pension Bureau dropped his name from the pension rolls for the reason that it considered such action as being required by the Act of March 3, 1891, 26 Stat. 1082. On May 21, 1929, Mr. Shaw entered an appeal which is pending with the Secretary of the Interior.

The Act of March 3, 1891, supra, provides:

66 That hereafter no pension shall be allowed or paid to any officer, non-commissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list."

When this statute was enacted officers of the Army and Navy were retired on account of physical disability incurred in the line of duty, consecutive years of service, and age. Army officers retired on account of disability incurred in the line of duty received 75 per cent of their active service pay. Naval officers retired after forty-five years service after

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