Dependents

owned by them was nothing, that the father's age was 72 and the mother's 60, and that the deceased lived with them until 1907, it was held that claimants could not be regarded as dependents within the meaning of the act and compensation was refused. Re Mariano Fernandez, Id., p. 481.

The deceased was nineteen years of age and left no widow or children, but did leave a father and mother who made the claim as to dependence. It appeared that during the twelve months prior to the death of the employé he lived apart from his parents and contributed nothing to their support, and their total income from all sources was $300. The father contended that the son intended to live with them in the winter and had promised to return home and help in whatever way he could. It was held, however, that they were not dependents within the meaning of the act and compensation was refused. Re Parker Patton, Id., p. 484.

Where it appeared that the deceased had borrowed money from his father, who was in business, and had considerable of an income and that the son, prior to his death, had repaid to his father a portion of the loan, and had promised to make further payments to the father and re-imbursed him for sums advanced to permit him to go to Panama, it was held that the father was not a dependent on the son within the meaning of the act and compensation was refused. Re J. S. Dabbs, Jr., Id., p. 484.

The word "portions" as used in the act refers to the division of the compensation among the claimants and not to its division into weekly or monthly payments, and the secretary is authorized to direct that one beneficiary receive a larger and another a smaller portion; his authority in this regard may even justify his direction that the whole compensation be paid to one beneficiary to the exclusion of the others. Re William A. Brinkley, Id., p. 485; Re Simeon Osbourne, Id., p. 489.

Where an injured employé dies several days or weeks

Dependents

after the injury, compensation is payable to the injured person or his personal representatives from the date of injury to and including the date of death, and for the balance of the year to the widow, children or dependent parent as the case may be. Re William McCarrel, Id., p. 490. In such a case the amount which the deceased was entitled to at the time of his death became an asset of the estate. The fact that he did not make a formal claim is immaterial. He may not have been in condition to do so. Whatever right he had at the time of his death passed to his legal representatives. Re William Lindsay, Id., 491.

Where an employé dies as the result of an injury before having made application for or received compensation the spirit and purpose of the act warrants the payment of compensation from the date of injury to the date of death, as well as for the remainder of the year to the widow or family of the deceased. (Opinion of Comptroller of the Treasury) Re Jos. L. Sullivan, Op. So. Dep. C. & L., p. 492. In the last mentioned case the comptroller said: "I do not think the words 'legal representatives' are here used as meaning only executors or administrators which is the ordinary and commonly accepted sense of that term, because they usually by law represent the deceased. But this is not the only definition of the term. The words may mean heirs, or next of kin, descendants, or devisees and distributees." The employé in this case had been injured on June 14th and became immediately incapacitated for any further work. He died on June 25th, eleven days later. The Comptroller held that under the facts presented the payment to the widow was in accordance with the principles of the law and might be made. The William McCarrel case, was decided on December 3, 1908 while the Joseph L. Sullivan case was decided on November 8, 1911. In the McCarrel case the employé was injured on October 21, and died four days later on October 25th. In the McCarrel case the solicitor of the department stated: "I find no provision of the law which

Filing claim

would authorize the Secretary to direct that the compensation due the decedent at the time of his death be paid to his widow." The solicitor added further: "In the payment of this portion of the compensation authorized by the act the disbursing officer will doubtless be governed by the rules laid down by the Comptroller of the Treasury in 12 Comptroller's Decisions, 439."

Compensation will not be paid to an administrator of a deceased employé either for disability before death or for compensation after death, unless the administrator represents a dependent beneficiary specified in the statute. Re Letter of Comptroller Tracewell to the Secretary of War, May 9, 1912, Op. Sol. Dep. C. & L., p. 635; 18 Comp. Dec. 872.

Where an employé is injured and makes a claim for compensation, but before the payment of the compensation he is killed by reason of another accident, the compensation for the first injury may be paid to the legal representatives of the employé; but if in such a case the employé has made no application for compensation prior to his second injury causing his death, no compensation can be paid for the first injury to the legal representatives. Letter of Comptroller Tracewell to the Isthmian Canal Commission, January 24th, 1910, Op. Sol. Dep. C. & L., p. 633; 16 Comp. Dec., p. 477.

The Secretary of Commerce and Labor has power to apportion payments to be made to various beneficiaries and acting under this power he may provide that the payment be apportioned in equal shares between the father and mother of a deceased employé. Re Letter of Comptroller Tracewell to the Secretary of War, Nov. 3, 1909, Op. Sol. Dep. C. & L., p. 630; 16 Comp. Dec. p. 290.

32. Filing claim.

The requirement that an affidavit of claim shall be filed within ninety days after the death is mandatory, and the claim of a widow filed ninety-one days after the death of the employé is barred by the statute. Re William Goodley, Op.

Filing claim

Sol. Dep. C. & L., p. 494. In the case last mentioned the employé was killed on October 8th, 1908, and the affidavit was filed on January 7th, 1909. In making the computation the day on which the employé dies is excluded and the day on which the affidavit is filed is included. The extension of the time within which to file a claim cannot be granted on the ground that the claimant did not understand his rights and that he was wrongly advised by the overseer of the work as to the method of procedure in making his claim. Re David Kaui, Id., p. 495.

What may be a reasonable time in which to file an affidavit of claim must be determined with reference to the circumstances of each case. Re L. F. Perron, Id., p. 536.

Neither a verbal notice of claim by a vice consul of Italy to the superior officer of an Italian subject, killed while in the employ of the United States, within ninety days after death, nor a telegraphic notice by such consul sent to the Secretary of Commerce and Labor ninety-two days after his death, is a compliance with the Act. Re Samuele Badolato, Id., p. 505. The last mentioned case was considered in three separate opinions, but the solicitor adhered to the opinion first expressed. In concluding the third opinion he said: "It is recognized that the limitations of the statute have worked a peculiar hardship in the case of Mr. Badolato, but the executive branch of the Government is without authority to extend the benefits of the Act beyond the plain language used by the legislative branch. To undertake by any rule or regulation to allow nonresident foreigners a longer period than 90 days in which to file affidavits of claim would be a usurpation of the legislative function by the executive department and contrary to the provisions of our Constitution."

Where a verbal claim for compensation was promptly made, but an affidavit of claim was not filed until nearly a year after the injury, owing to the neglect of official superiors to furnish necessary forms, the delay was held to be not un

Filing claim

reasonable, and compensation was awarded. Re James Sturgeon, Id., p. 535.

An affidavit of claim may be executed and filed for the claimant by an attorney in fact duly appointed for that purpose. Re Jesus Jiminez, Id., p. 526.

An affidavit of claim filed within ninety days by an agent, in accordance with a sufficient power of attorney executed by a widow of the deceased employé constitutes due filing. Re A. G. Munoz, Id., p. 510.

The delivery of an affidavit of claim to the official superior of the deceased employé in accordance with the regulations of the secretary designating such official superior to receive the same, is a filing with the secretary within the meaning of the Act. Re George Nurse, Id., p. 501.

It is the date of delivery to the official superior and not the date of the execution of the affidavit of claim which determines whether or not the affidavit of claim is filed within ninety days. Re E. R. Graham, Id., p. 504.

An affidavit of claim deposited in the mail within ninety days after the death of the employé, addressed to the deceased's official superior, but not received by the latter until after the expiration of the ninety day period, is not a filing within the meaning of the Act. Re Isaiah Henry, Id., p. 510.

Where a claimant cannot act for himself within the time limited, and another, in his name and behalf, but without prior authority, acts for him and files a claim within ninety days, a ratification by the claimant of the act done on his behalf, though made after the expiration of the ninety days, relates back to the time of the act done so as to make the filing effective as of the prior date. Re Lyall Callender, Id., p. 512.

An affidavit of claim filed with the American consul at Madrid to whom the proper blanks had been sent, and through whom they were to be returned when filled out and executed, held under the circumstances to have been filed