B-135062, APR. 10, 1958
Highlights
SENDLBECK: REFERENCE IS MADE TO YOUR LETTER OF MARCH 26. YOU WERE ALLOWED ONE-HALF OF THE ARREARS OF PAY BY SETTLEMENT DATED OCTOBER 7. THE BALANCE (APPROXIMATELY $55.38) WAS RESERVED FOR THE DECEDENT'S MOTHER AS EXPLAINED TO YOU IN THE SETTLEMENT AND IN OUR DECISION OF MARCH 19. YOU WERE ALSO ADVISED IN THAT DECISION WHY THE AMOUNT RESERVED FOR THE MOTHER COULD NOT BE ALLOWED TO THE DECEDENT'S GRANDMOTHER AND FURTHER. WITH RESPECT TO A PRESUMPTION THAT THE MOTHER IS DEAD. IT IS HELD. THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME. THERE IS A PRESUMPTION. THAT SUCH PERSON IS STILL ALIVE UNTIL THE PRESUMPTION IS OVERCOME BY THE MORE POTENT PRESUMPTION OF DEATH. THE EXISTENCE OF ANY MOTIVE FOR THE DISAPPEARANCE AND FAILURE TO COMMUNICATE USUALLY IS SUFFICIENT TO PREVENT THE PRESUMPTION FROM ARISING.
B-135062, APR. 10, 1958
TO MR. MICHAEL J. SENDLBECK:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1958, FURTHER CONCERNING YOUR CLAIM FOR THE BALANCE OF THE ARREARS OF PAY DUE THE ESTATE OF YOUR LATE SON, RICHARD M. SENDLBECK, WHO DIED APRIL 24, 1944, WHILE SERVING AS AN ENLISTED MAN IN THE ARMY.
YOU WERE ALLOWED ONE-HALF OF THE ARREARS OF PAY BY SETTLEMENT DATED OCTOBER 7, 1944, OF OUR CLAIMS DIVISION, AND THE BALANCE (APPROXIMATELY $55.38) WAS RESERVED FOR THE DECEDENT'S MOTHER AS EXPLAINED TO YOU IN THE SETTLEMENT AND IN OUR DECISION OF MARCH 19, 1958, B-135062, TO YOU. YOU WERE ALSO ADVISED IN THAT DECISION WHY THE AMOUNT RESERVED FOR THE MOTHER COULD NOT BE ALLOWED TO THE DECEDENT'S GRANDMOTHER AND FURTHER, THAT SINCE THE MOTHER HAD NOT FILED CLAIM, ANY CLAIM BY HER COULD NOT BE ALLOWED IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, BARRING ANY CLAIM AGAINST THE UNITED STATES NOT RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER SUCH CLAIM FIRST ACCRUED. IN YOUR LETTER OF MARCH 26, 1958, YOU URGE, IN EFFECT, THAT THE AMOUNT RESERVED BE PAID TO YOU, SAYING THAT THE DECEDENT'S MOTHER, HAVING BEEN ABSENT FOR 18 YEARS, SHOULD BE CONSIDERED DEAD.
WITH RESPECT TO A PRESUMPTION THAT THE MOTHER IS DEAD, IT IS HELD, GENERALLY, THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME, THERE IS A PRESUMPTION, IN THE ABSENCE OF PROOF TO THE CONTRARY, THAT SUCH PERSON IS STILL ALIVE UNTIL THE PRESUMPTION IS OVERCOME BY THE MORE POTENT PRESUMPTION OF DEATH. UNITED STATES V. WILDCAT, 244 U.S. 111; WHITE V. METROPOLITAN LIFE INS. CO., 100 P.2D 691. ALSO, A MORE UNEXPLAINED ABSENCE DOES NOT CREATE A PRESUMPTION OF DEATH, BUTLER V. MUTUAL LIFE INS. CO. OF NEW YORK, 225 N.Y. 197, 121 N.E. 758; AND THE EXISTENCE OF ANY MOTIVE FOR THE DISAPPEARANCE AND FAILURE TO COMMUNICATE USUALLY IS SUFFICIENT TO PREVENT THE PRESUMPTION FROM ARISING. RE TALBOT, 250 MASS. 517, 146 N.E. 1; AND NOTE, 64 A.L.R. 1288. CONSEQUENTLY, IN CASES OF THIS NATURE ARISING UNDER THE FEDERAL STATUTES, THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT WE PROCEED ON THE BASIS THAT THE MOTHER IS OR MAY BE ALIVE.
ACCORDINGLY, WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, WE TRUST THAT YOU WILL UNDERSTAND THAT THERE IS NO LEGAL BASIS UPON WHICH THE BALANCE DUE THE ESTATE OF YOUR LATE SON MAY BE ALLOWED TO YOU.