The CHAIRMAN. Suppose you petition the court, and the court decided that that money had been paid

Mr. LIPPS. That would be the decision of that court only. If it were a lower court, that is. The decision would be applicable only in that court. It would not necessarily be followed in all the other courts of that State.

If it were an appellate court decision it would apply in that State only. We do not feel that it would be the proper thing to do.

The CHAIRMAN. I would still like to get the money back that is in those estates and not going to the primary beneficiaries.

Mr. WHITENER. May I ask a question here in the light of what Dr. Long and Mr. Weaver have asked and Mr. Haley and I discussed? The CHAIRMAN. Yes, Mr. Whitener.

you

Mr. WHITENER. Where there is a father or a mother do determine dependency on past history of contributions of this incompetent child, or upon present need of the parents? How do you determine it, on the basis of the facts as they exist?

Mr. LIPPS. We determine it on the basis of the facts as they exist, under the VA regulation, income of more than $105 per month for one parent and $175 for both is prima facie evidence of nondependency. However, this is prima facie only. We look into this matter of support by the veteran on the basis that if he were able to furnish it he would do so, then make a fact-finding determination in each individual case in light of the regulation.

Mr. WHITENER. But you do not bind yourself by what this boy may have given to them in the past?

Mr. LIPPS. No. There are a lot of cases where the boy did not contribute, but the conditions are such now that he would be expected to. Mr. WEAVER. Could not your battery of lawyers in the Veterans' Administration draw up a foolproof law?

Mr. LIPPS. Sir, may I speak for myself and say that no group of lawyers could draw up a foolproof law.

Mr. WEAVER. A lot of lawyers spoke on the floor of the House about this bill

Mr. LIPPS. As you know, there is a difference between the lawyers in the Congress and the lawyers in the Department.

Mr. WEAVER. Well, as far as the Supreme Court, it is the last word. Mr. LIPPS. It is at the present time.

The CHAIRMAN. Again, I do not understand why a lawyer is not willing to let the courts decide.

Mr. LIPPS. Let me say again, the Veterans' Administration does not generally go into the court without a United States attorney.

The Department of Justice would be the ones who would determine whether we should do so. We might submit a particular case to the Department of Justice and say, let's try to get the money, let's bring an action; but if the Department of Justice felt otherwise, we could not do a doggone thing about it.

Mr. SHUFORD. Mr. Chairman, let me ask how much do we have in this personal fund of the patients' account?

Mr. LIPPS. $62 million, something like that.

Mr. BLAND. I do not recall the exact figure. I think about $46 million, Judge Shuford. That is composed chiefly of payments of compensation, pension and emergency officers' retirement pay. Mr. SHUFORD. In personal funds of patients?

Mr. BLAND. Yes, some of the $62 million goes to the competent veteran, some of it came from insurance, some came from deposits from guardians and from other non-VA sources, so you are narrowed down to this $46 million.

Mr. WHITENER. Let me say this to our distinguished chairman: lawyers do not get their clients deliberately into a lawsuit, a lawyer who is worthy of his license, does not. He does all that is possible for them and he advises his clients, in this case the United States Government, against lawsuits if they can be avoided.

The CHAIRMAN. But there are cases where the Government deliberately takes a case to court to get a decision on it.

Mr. WHITENER. Yes, and when they do that, they are not doing what I think they ought to do. They ought to let the lawsuits develop as a matter of determining the issue between individual litigants.

Mr. SHUFORD. Even though lawyers do try to avoid litigation wherever possible, I think nevertheless there are certain cases where determination of the issues can have some farreaching advantage or effect, or possibly the law should be made clear cut.

I think our courts have provided statutes for such determinations under controversy. For instance, in the Declaratory Judgment Act; and we can determine beforehand what is the law.

We all want to observe the law if we know it, and sometimes we have to go into court to find out exactly what the law really is; but ordinarily the lawyers just like to study up on these things and advise their clients properly.

I think that there are some funds here that should be recaptured for the benefit of the veteran and for the benefit of the veterans' program.

I think that we should examine this and do so very carefully, Mr. Chairman, and see what we can do about it.

The CHAIRMAN. Mr. Bland, would you attempt to draw up a chart to be placed in these hearings of a competent veteran with dependents drawing compensation as an award, and an incompetent veteran with dependents drawing a pension, and in the different kinds of institutions-a State, in a private institution, in a State home, in a Federal institution-and as far as possible show compensation received that would be comparable, for instance, $66.15, and show how this would develop, say, for a period of 10 years.

Make it something that a Member of Congress can pick up and look at and see a general picture of how this thing developed. Can you work up something of that sort?

Mr. BLAND. We can try.

The CHAIRMAN. Because I do not think there are half a dozen Members of Congress who fully understand this matter.

Mr. DALEY. Are you talking about the competent or incompetent? The CHAIRMAN. Competent and incompetent. In other words, a chart that will show each class of veterans and show the charges that might be brought about, or the changes.

Mr. DALEY. You are talking about institutionalized veterans, are you not?

The CHAIRMAN. I am talking about a veteran that might go into a State institution or a Federal institution or into a home, give us both Federal or State.

I believe a chart can be prepared without going into too much detail about it giving a person an overall picture of the thing. Mr. DALEY. You mentioned a figure of compensation. What was that, please?

The CHAIRMAN. Use a figure that is comparable.

Mr. BLAND. You would use a figure that is the same all the way through.

The CHAIRMAN. If you cannot submit it, all right; but if you could, I think it might tend to show what a great number of things are involved in this thing and clarify many of them.

Mr. BLAND. I think it might take some time, but I hope you will indulge us.

The CHAIRMAN. We want to take this bill back on the floor. We are going to try to get a response from everybody we can.

We got a very poor response from all the Members of Congress previously, and I believe there have been only 3 who have testified and 3 others have submitted statements.

We are not through with this bill.

It may be that we will have to come to a point that we will only deal with the future, but I am not quite ready to do that yet, and I do not think Judge Shuford is either.

Without objection the chart previously referred may be inserted at the end of these hearings as well as the laws on guardianship of the several States and the laws governing the operation of State homesthe latter at the request of Mr. Whitener.

CODE OF ALABAMA, §§ 160-176

§ 160. Definitions.-The term "person" includes a partnership, corporation or an association. The term "bureau" means the United States veterans' bureau or its successor. The term "estate" and "income" shall include only moneys received by the guardian from the bureau and all earnings, interest and profits derived therefrom. The term "benefits" shall mean all moneys payable by the United States through the bureau. The term "director" means the director of the United States veterans' bureau or his successor. The term "ward" means a beneficiary of the bureau. The term "guardian" as used herein shall mean any person acting as a fiduciary for a ward. (1931, p. 280.)

Editor's note.-For cases construing the act of 1923, p. 677, superseded by this and the following section, see Robinson v. Williams, 229 Ala. 692, 159 So. 239; White v. White, 230 Ala. 641, 162 So. 368.

This chapter does not violate the Constitution, §§ 68, 281. Rep. Atty. Gen., 1932–34, p. 60. Purpose of chapter.-The purpose of this chapter is to place these wards under a system of laws separate and apart from the general laws of this state relating to guardians and wards. Rep. Atty. Gen., 1932-34, p. 24.

§ 161. When guardian to be appointed. Whenever, pursuant to any law of the United States or regulations of the bureau, the director requires, prior to payment of benefits, that a guardian be appointed for a ward, such appointment shall be made in the manner hereinafter provided. (Ib.)

Appointment of guardian under provisions of this chapter providing for appointment of guardians for veterans, whom the veterans bureau deem incompetent, and for whom the bureau requires a guardian, is not an adjudication of insanity. Rep. Atty. Gen., 1932-34, p. 578.

§ 162. Guardian not to act for more than five wards.-Except as hereinafter provided it shall be unlawful for any person to accept appointment as guardian of any ward if such proposed guardian shall at that time be acting as guardian for five wards. In any case, upon presentation of a petition by an attorney of the bureau under this section alleging that a guardian is acting in a fiduciary capacity for more than five wards and requesting his discharge for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from such guardian and shall discharge such guardian in said case. The limitations of this section shall not apply where the guardian is a bank or

trust company acting for the wards' estates only. An individual may be guardian of more than five wards if they are all members of the same family. (Ib.) § 163. Petition for appointment of guardian.-A petition for the appointment of a guardian may be filed in any court of competent jurisdiction by or on behalf of any persons who under existing law is entitled to priority of appointment. If there be no person so entitled or if the person so entitled shall neglect or refuse to file such a petition within thirty days after mailing of notice by the bureau to the last known address of such person indicating the necessity for the same, a petition for such appointment may be filed in any court of competent jurisdiction by or on behalf of any responsible person residing in this state. The petition for appointment shall set forth the name, age, place of residence of the ward, the names and places of residence of the nearest relative, if known, and the fact that such ward is entitled to receive moneys payable by or through the bureau and shall set forth the amount of moneys then due and the amount of probable future payments. The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward. In the case of a mentally incompetent ward the petition shall show that such ward has been rated incompetent on examination by the bureau in accordance with the laws and regulations governing the bureau. (Ib.)

§ 164. Certificate of age of minor.-Where a petition is filed for the appointment of a guardian of a minor ward a certificate of the director, or his representative, setting forth the age of such minor as shown by the records of the bureau and the fact that the appointment of a guardian is a condition precedent to the payment of any moneys due the minor by the bureau, shall be prima facie evidence of the necessity for such appointment. (Ib.)

§ 165. Certificate of mentally incompetent ward.-Where a petition is filed for the appointment of a guardian of a mentally incompetent ward a certificate of the director, or his representative, setting forth the fact that such person has been rated incompetent by the bureau on examination in accordance with the laws and regulations governing such bureau; and that the appointment of a guardian is a condition precedent to the payment of any moneys due such persons by the bureau, shall be prima facie evidence of the necessity for such appointment. (Ib.)

Insanity is within discretion of tax officials. Whether the person pronounced incompetent was in fact insane is a matter within the sound discretion of the tax officials, upon satisfactory proof being offered. Rep. Atty. Gen., 1934-36, p. 731.

The probate judge may rely on the certificate of the director and need not summon a jury, in a case of the appointment of guardians of incompetent veterans and of minor children of disabled or deceased veterans. Rep. Atty. Gen., 1932-34, p. 23.

§ 166. Notice of filing of petition. Upon the filing of a petition for the appointment of a guardian under the provisions of this chapter, the court shall cause such notice to be given as provided by law. (Ib.)

The notice mentioned in this section is the same notice mentioned in § 17 of this title. Rep. Atty. Gen., 1932-34, p. 23.

§ 167. Qualifications and bonds of guardians. Before making an appointment under the provisions of this chapter the court shall be satisfied that the guardian whose appointment is sought is a fit and proper person to be appointed. Upon the appointment being made the guardian shall execute and file a bond to be approved by the court in an amount not less than the sum then due and estimated to become payable during the ensuing year. The said bond shall be in the form and be conditioned as required of guardians appointed under the guardianship laws of this state. And it shall be the duty of the court having jurisdiction of the cause, upon the application by any party in interest, to require the filing of an individual bond in accordance with the provisions of this section, without regard to the provisions of any pre-existing general or local statute or charter provision of any corporation exempting the fiduciary from the posting of an individual guardianship bond. The court shall have power from time to time to require the guardian to file an additional bond. Where a bond is tendered by a guardian with personal sureties, such sureties shall file with the court a certificate under oath which shall describe the property owned, both real and personal, and that they are each worth the sum named in the bond as the penalty thereof over and above all their debts, and liabilities, and exclusive of property exempt from execution. (1936-37, Ex. Sess., p. 270.)

§ 168. Accounts of receipts and disbursements.-Every guardian, who shall receive on account of his ward any moneys from the bureau, shall file with the court annually, on the anniversary date of the appointment, in addition to such

other accounts as may be required by the court, a full, a true, and accurate account under oath of all moneys so received by him, of all disbursements thereof, and showing the balance thereof, in his hands at the date of such account and how invested, including a complete descriptive itemization of all investments, and must submit to the court for its examination all securities and evidences of debt belonging to the ward and the decree of the court passing the settlement must recite that all securities and evidences of debt due the ward have been presented to and examined by the court. Provided, that in the absence of objection by any party in interest the court may in its discretion, and without formal proceedings, extend from time to time the time for the filing of the accounts for annual or partial settlement, but no such continuance shall be granted so as to extend the time for filing such settlements to a period beyond three calendar years from the date of the appointment or the date of the last partial settlement, whichever is the later, and upon the termination of the guardianship from any cause a like account must be filed for final settlement. A certified copy of each of such accounts filed with the court shall be sent by the guardian to the office of the buerau having jurisdiction over the area in which such court is located. The court shall fix a time and place for the hearing on such account not less than fifteen days nor more than thirty days from the date of filing same and notice thereof shall be given by the court to the aforesaid bureau office not less than fifteen days prior to the date fixed for the hearing. Notice of such hearing shall in like manner be given to the guardian. Provided, that notice as herein required may be given by registered mail, addressed to the principal office of the bureau located in the State of Alabama as such address appears on record in the probate office. (Ib.)

Appointment of guardian ad litem for annual settlements, see Rep. Atty. Gen., 1934-36, p. 207.

§ 169. Taxation of costs and fees.-The costs and fees exclusive of fees of the guardian ad litem incident to any partial or final settlement by any guardian subject to the provisions of this chapter shall be taxed in the amounts provided by the general statutes for like services, but of such costs and fees there shall not be taxed or charged against the estate of the ward, on any partial settlement, any amount in excess of one-half of one percentum of the amount of money with which the guardian is chargeable on the settlement as having received since the last preceding settlement and with which the guardian has not previously been charged. Provided the limitations contained in this section as to costs and fees shall not affect the commissions and fees otherwise payable to the general guardian and to guardians ad litem. (Ib.)

This section controls over fees provided for in Tit. 11, § 29 for probate judges generally. Rep. Atty. Gen., 1936-38, p. 387.

§ 170. Removal of guardian for failure to file account.-If any guardian shall fail to file any account of the moneys received by him from the bureau on account of his ward within thirty days after such account is required by either the court or the bureau, or shall fail to furnish the bureau a copy of his accounts as required by this chapter, such failure shall be grounds for removal. (1931, p. 280.)

$171. Compensation of guardian.-Compensation payable to guardian shall not exceed five percent of the income of the ward during any year. In the event of extraordinary services rendered by such guardians the court may, upon petition and after hearing thereon, authorize additional compensation therefor payable from the estate of the ward. Notice of such petition and hearing shall be given the proper office of the bureau in the manner provided in section 168 of this title. No compensation shall be allowed on the corpus of an estate received from a preceding guardian. The guardian may be allowed from the estate of his ward reasonable premiums paid by him to any corporate surety upon his bond. (Ib.)

Five hundred dollars allowed guardian for extraordinary services performed in securing repayment of $5,000 invested by guardian's predecessor in company which became insolvent after guardian's appointment, and in investing funds of the ward to advantage, was excessive by $250, notwithstanding that services allegedly consumed approximately one year's time, and resulted in enhancing the value of the ward's estate. Hines V. Dollar, 236 Ala. 329, 181 So. 748.

§ 172. Investments by guardians.—Every guardian shall invest the funds of the estate in one or more of the following forms in which the guardian has no interest, and not otherwise: (1) Interest bearing obligations of the State of Alabama or of the United States, or as to which the State of Alabama or the 95196-57-9