B-118831, OCT. 9, 1957
Highlights
YOUR CLAIM WAS DISALLOWED BECAUSE AS BROTHER OF THE DECEASED YOUR CLAIM IS INFERIOR TO THAT OF THE CHILD OF THE DECEASED. YOU WERE FURTHER INFORMED THAT THE FACT THAT YOU HAD NOT HEARD FROM YOUR SISTER'S CHILD FOR MANY YEARS DID NOT ESTABLISH THAT THE CHILD WAS NOT STILL LIVING. IT WAS POINTED OUT THAT SUCH COULD BE ESTABLISHED BY A DEATH CERTIFICATE. IT IS GENERALLY HELD BY THE COURTS THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME. IS THAT HE IS STILL ALIVE UNTIL SUCH PRESUMPTION IS OVERCOME BY THE MORE POTENT PRESUMPTION OF DEATH. IS OR MAY BE ALIVE UNTIL THE FACT OF HIS DEATH IS ESTABLISHED OR IS JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION. UNTIL THIS OFFICE IS FURNISHED WITH EVIDENCE OF THE CHILD'S DEATH.
B-118831, OCT. 9, 1957
TO MR. HENRY L. LENNOX:
YOUR CLAIM FOR THE PROCEEDS OF UNITED STATES TREASURY CHECK NO. 66,191,876, DATED JUNE 3, 1953, IN THE AMOUNT OF $53.90, TO THE ORDER OF YOUR SISTER, ANNA N. STRITT, NOW DECEASED, WHICH YOU RECENTLY FILED WITH THE BUREAU OF OLD-AGE AND SURVIVORS INSURANCE HAS BEEN FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR CONSIDERATION.
YOUR CLAIM HAS BEEN THE SUBJECT OF TWO PREVIOUS COMMUNICATIONS FROM THIS OFFICE. IN OFFICE SETTLEMENT Z-1419525, OF NOVEMBER 17, 1953, AND IN DECISION B-118831, OF FEBRUARY 23, 1954, YOUR CLAIM WAS DISALLOWED BECAUSE AS BROTHER OF THE DECEASED YOUR CLAIM IS INFERIOR TO THAT OF THE CHILD OF THE DECEASED. IN B-118831 OF FEBRUARY 23, 1954, YOU WERE FURTHER INFORMED THAT THE FACT THAT YOU HAD NOT HEARD FROM YOUR SISTER'S CHILD FOR MANY YEARS DID NOT ESTABLISH THAT THE CHILD WAS NOT STILL LIVING. IT WAS POINTED OUT THAT SUCH COULD BE ESTABLISHED BY A DEATH CERTIFICATE, OR A COURT ORDER SO DECLARING.
THE MATTER SUBMITTED IN YOUR CLAIM WITH THE BUREAU OF OLD-AGE AND SURVIVORS INSURANCE DOES NOT CONSTITUTE PROOF OF THE DEATH OF YOUR SISTER'S CHILD.
IT IS GENERALLY HELD BY THE COURTS THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME, THE PRESUMPTION, IN THE ABSENCE OF PROOF TO THE CONTRARY, IS THAT HE IS STILL ALIVE UNTIL SUCH 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 MERE UNEXPLAINED ABSENCE DOES NOT CREATE A PRESUMPTION OF DEATH. BUTLER V. MUTUAL LIFE INS. CO. OF NEW YORK, 121 N.E. 758.
CONSEQUENTLY, IN THIS CASE THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT OUR OFFICE PROCEED ON THE BASIS THAT THE CHILD, AS THE PERSON WITH SUPERIOR RIGHTS TO THE ESTATE OF ANNA N. STRITT, IS OR MAY BE ALIVE UNTIL THE FACT OF HIS DEATH IS ESTABLISHED OR IS JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.
HENCE, UNTIL THIS OFFICE IS FURNISHED WITH EVIDENCE OF THE CHILD'S DEATH, OR IN THE ALTERNATIVE, WITH AN AUTHENTICATED COPY OF A DECREE OF A COURT OF COMPETENT JURISDICTION DECLARING SUCH CHILD TO BE LEGALLY DEAD WE MUST WITHHOLD PAYMENT OF THIS CHECK ON THE PRESUMPTION THAT HE IS STILL ALIVE.