B-123062, JUL. 25, 1955

B-123062, JUL. 25, 1955

TO MRS. STELLA MCCLURE:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 1 AND JULY 1, 1955, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN LETTERS DATED DECEMBER 3, 1954, AND JANUARY 20, 1955, WHICH DENIED THE CLAIM SUBMITTED BY YOU FOR YOUR SHARE, AS SISTER, OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR LATE BROTHER, RICHARD B. BACH, AT THE PRESUMPTIVE DATE OF HIS DEATH, MARCH 5, 1954, AS SERGEANT, UNITED STATES ARMY. ALSO, THERE HAS BEEN REFERRED HERE A LETTER WRITTEN IN YOUR BEHALF BY MR. NORMAN D. JONES, DIRECTOR, KANSAS VETERANS' COMMISSION, TOPEKA, KANSAS.

YOUR BROTHER ENTERED A MISSING STATUS WITHIN THE PROVISIONS OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1001, ON DECEMBER 1, 1950, AND FOR THE PURPOSES OF THAT ACT HIS DEATH IS PRESUMED TO HAVE OCCURRED ON MARCH 5, 1954. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT THE SUM OF $8,315.72 REMAINED DUE THE DECEDENT AS OF THE PRESUMPTIVE DATE OF HIS DEATH.

IT APPEARS THAT YOUR BROTHER WAS MARRIED ON AUGUST 7, 1932, AND THAT THREE CHILDREN, JOLEEN MARIE, CHARLEEN MARGARET AND VIRGINIA RAY, WERE BORN OF THAT MARRIAGE. ON APRIL 13, 1938, SUCH MARRIAGE WAS TERMINATED BY A DECREE OF DIVORCE, TO BE ABSOLUTE ON THE EXPIRATION OF SIX MONTHS, AND YOUR BROTHER'S WIFE, HELEN, WAS GRANTED CARE AND CUSTODY OF THE THREE CHILDREN BORN OF THE MARRIAGE. ON JANUARY 27, 1939, THE FORMER HELEN BACH AND HER SECOND HUSBAND, W. E. SLATER, ADOPTED YOUR BROTHER'S THREE MINOR CHILDREN. IN THE PRESENTATION OF YOUR CLAIM IT IS INDICATED THAT YOUR BROTHER WAS NOT SURVIVED BY A WIDOW, HIS FATHER OR MOTHER, BUT THAT HE WAS SURVIVED BY BROTHERS AND SISTERS. IN YOUR LETTER OF FEBRUARY 1, 1955, YOU CONTEND THAT YOUR BROTHER'S CHILDREN ARE NO LONGER HIS LEGAL HEIRS BECAUSE THEY HAVE BEEN ADOPTED BY THEIR STEPFATHER. YOU INVITE ATTENTION TO THE FACT THAT YOU WERE ADVISED BY THE SETTLEMENTS DIVISION, ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, THAT YOUR CLAIM FOR THE ARREARS OF PAY HAD BEEN FORWARDED HERE FOR APPROVAL AND YOU EXPRESS THE BELIEF THAT SINCE YOU HAVE RECEIVED YOUR BROTHER'S DEATH GRATUITY PAY YOU SHOULD BE ENTITLED TO RECEIVE YOUR SHARE OF THE ARREARS OF PAY DUE HIS ESTATE WITHOUT THE NECESSITY OF THE APPOINTMENT OF A LEGAL REPRESENTATIVE.

RESPECTING THE LETTER YOU RECEIVED FROM THE SETTLEMENTS DIVISION TO THE EFFECT THAT YOUR CLAIM HAD BEEN FORWARDED HERE FOR APPROVAL, YOU ARE ADVISED THAT, WHILE ADMINISTRATIVE RECOMMENDATIONS MADE IN CONNECTION WITH CASES SENT HERE FOR SETTLEMENT ARE GIVEN CAREFUL CONSIDERATION, WE MUST BE GOVERNED BY THE APPLICABLE STATUTORY PROVISIONS.

THE LAWS AND REGULATIONS GOVERNING THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY ARE SEPARATE AND DISTINCT FROM, AND HAVE NO APPLICATION TO, THE SETTLEMENT OF CLAIMS FOR ARREARS OF PAY AND ALLOWANCES DUE THE ESTATES OF DECEASED MEMBERS OF THE ARMY. THE SETTLEMENT OF SUCH LATTER CLAIMS IS GOVERNED BY THE ACT OF JUNE 30, 1906, AS AMENDED BY SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"HEREAFTER IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE ARMY, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE DECEDENT'S WIDOW, WIDOWER, OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW OR WIDOWER; SECOND, IF DECEDENT LEFT NO WIDOW OR WIDOWER, OR THE WIDOW OR WIDOWER BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES; THIRD, IF NO WIDOW, WIDOWER, OR DESCENDANTS, THEN TO THE FATHER AND MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE NO WIDOW, WIDOWER, CHILD, FATHER, OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES * * *.'

IN THE ABSENCE OF A DEMAND FROM A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE STATUTE AUTHORIZES AN ALLOWANCE ONLY TO THE CLASSES OF LEGAL HEIRS ENUMERATED THEREIN, IN THE ORDER OF PREFERENCE MENTIONED. PAYMENT TO BROTHERS AND SISTERS OF AMOUNTS DUE AS ARREARS OF PAY IS AUTHORIZED ONLY IN THE EVENT THE DECEDENT IS NOT SURVIVED BY A WIDOW, DESCENDANTS, FATHER OR MOTHER.

IT IS A GENERAL RULE THAT, UNLESS THERE IS AN EXPRESS LEGISLATIVE DECLARATION SO PROVIDING, IT CANNOT BE ASSUMED THAT AN ADOPTED CHILD CANNOT INHERIT FROM ITS NATURAL PARENT. SEE 2 C.J.S. 454; 1 AM.JUR. 656; 80 A.L.R. 1403; 37 A.L.R. 2D 333. COMPARE DREYER V. SCHRICK, 105 KAN. 495, 185 P. 30, AND BARTRAM V. HOLCOMB, 109 KAN. 87, 198 P. 192. IN VIEW OF SUCH RULE, WE MAY NOT CONCLUDE THAT THE BROTHERS AND SISTERS OF THE DECEDENT ARE ENTITLED TO RECEIVE THE AMOUNT DUE, TO THE EXCLUSION OF HIS SURVIVING CHILDREN. THE RIGHT OF THE CHILDREN, HOWEVER, TO RECEIVE THE AMOUNT DUE IS NOT FREE FROM DOUBT. IT IS A LONG-STANDING RULE OF THE ACCOUNTING OFFICERS IN CASES WHERE CONFLICTING CLAIMS HAVE BEEN RECEIVED AND NEITHER CLAIMANT HAS CLEARLY ESTABLISHED A RIGHT TO RECEIVE THE AMOUNT DUE, THAT SETTLEMENT WILL BE WITHHELD UNTIL A DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. 16 COMP. GEN. 889. ACCORDINGLY, PAYMENT OF THE ARREARS OF PAY WILL BE WITHHELD PENDING CLAIM FROM A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF YOUR LATE BROTHER. SUCH CLAIM, IF PRESENTED, SHOULD BE SUPPORTED BY A CERTIFIED COPY OF LETTERS OF ADMINISTRATION OR A SHORT FORM CERTIFICATE OF THE COURT EVIDENCING SUCH APPOINTMENT.

FOR YOUR INFORMATION IT MAY BE STATED THAT A COMMUNICATION REGARDING AMOUNTS DUE THE ESTATE OF YOUR LATE BROTHER HAS BEEN RECEIVED FROM MRS. M. L. BIZZELL, TRUST OFFICER, COMMERCIAL NATIONAL BANK OF KINSTON, KINSTON, NORTH CAROLINA, IN THE CAPACITY OF GUARDIAN OF THE ESTATE OF CHARLEEN MARGARET MCPHEETERS (A MINOR), AS DAUGHTER OF RICHARD B. BACH. MRS. BIZZELL IS ALSO BEING ADVISED THAT PAYMENT IN THIS CASE WILL BE MADE ONLY TO A LEGAL REPRESENTATIVE OF THE ESTATE OF RICHARD B. BACH.

A COPY OF THIS LETTER IS BEING FURNISHED MR. NORMAN D. JONES TO APPRISE HIM OF THE ACTION TAKEN ON YOUR CLAIM.