United States v. Henning/Dissent Burton
Mr. Justice BURTON, with whom The CHIEF JUSTICE joins, concurring in part and dissenting in part.

I agree with the opinion and the judgment of the Court insofar as it holds that no installments may be paid to the legal representatives of the estates of the respective deceased beneficiaries. However, I feel obliged to conclude that, within the meaning of the Act, only the natural father and the foster mother of the insured last bore to him, at the time of his death, the relationship of parents. That last relationship was then to the exclusion of everyone, even to the exclusion of his natural mother. Consequently, upon the death of those two persons who last bore the relationship of parent to the insured, there remained no person entitled under the terms of the Act to receive any of the proceeds as a contingent beneficiary. Accordingly, the proceeds should be withheld for the benefit of the National Service Life Insurance Fund.

Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, dissenting.

Perhaps a halfhearted dissent, like an extemporaneous speech, is only worth the paper it is written upon. We do no more than point out that we would prefer a more benign construction of these complex statutes which would be equally reasonable.

The problem is of that recurring sort well described by Judge Learned Hand as follows:

'The issue involves the baffling question which comes up so      often in the interpretation of all kinds of writings; how far      is it proper to read the words out of their literal meaning      in order to realize their overriding purpose? It is idle to      add to the acres of paper and streams of ink that have been      devoted to the discussion. When we ask what Congress      'intended,' usually there can be no answer, if what we mean      is what any person or group of persons actually had in mind.      Flinch as we may, what we do, and must do, is to project      ourselves, as best we can, into the position of those who      uttered the words, and to impute to them how they would have      dealt with the concrete occasion. He who supposes that he can      be certain of the result, is the least fitted for the      attempt.' United States v. Klinger, 2 Cir., 199 F.2d 645,      648.

The literal language of Congress in 38 U.S.C. § 802(i), 38 U.S.C.A. § 802(i), we would read with emphasis as follows: 'The right of any beneficiary to payment of any installments shall be conditioned upon his or her being alive to receive such payments.' This, on our reading, says that a beneficiary's claim to an installment is matured and his right is perfected when the installment becomes due and he is alive to receive it whether or not he then actually reduces it to possession. Under the Court's construction, no 'right' to an installment comes into existence until the claimant has actually received payment. On that event, we would think he would cease to have the 'right.' It is not clear what the Court would do about the case where a check was sent to pay the claim and the claimant died while it was in the mails or after he had received the check but before it was actually presented for payment. But to us this language means that installments accrue to a beneficiary when they fall due during his lifetime and thereupon become his of right.

We do not read § 802(j) as taking away what § 802(i) grants. It may be read with this emphasis: 'No installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary * * *.' Just what 'as such' adds or subtracts may be debated, but to us the phrase, if it is to have any significance in this context, means that payments cannot accrue to an administrator or executor, because a personal representative as such cannot become a beneficiary. But it does not mean that the personal representative cannot collect installments which had become the 'right' of decedent during his lifetime.

This construction would avoid what the Court admits is a harsh and capricious result. It seems strange, in dealing with a bereaved beneficiary, if our Government makes a promise to the ear to be broken to the hope. Under the Court's view, though the beneficiary is alive to receive the payment and therefore has the statutory 'right' to it, any event that delays its actual payment may cancel his 'right.' By an adverse claim, however fictitious, or a litigation, however frivolous, a junior beneficiary may delay payments and gamble on winning them for himself through death of the senior beneficiary. Some period of waiting is inevitable in the settlement of claims in any event, and we all know the tendency of claim papers to shuffle back and forth between Washington desks while time, which means little to the administrative staff, means everything to the claimant. We would not put upon beneficiaries all risks caused by delay and thus make their statutory rights as contingent as lottery tickets. Beneficiaries of this class are often dependents, left in urgent need by death of the insured. When red tape or litigiousness delays the promised income, should not the beneficiary while waiting to hear from Washington have a firm right to accrued installments on which he or his estate could depend? The reasoning that would deny the asset to the estate may also deny the needy beneficiary credit.

We do not think that the Court's admittedly harsh result is the fairest permissible interpretation of this statute. We would allow the estate of a beneficiary to recover payments that fall due while the beneficiary is alive to receive them. On this point alone do we dissent. 

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