B-143278, SEP. 23, 1960

B-143278, SEP. 23, 1960

TO W. S. NORTHCUTT, ESQUIRE:

YOUR LETTER OF AUGUST 25, 1960, CONCERNING THE COMPENSATION DUE HENRY BANKS, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE ARMY, ATLANTA GENERAL DEPOT, AT THE TIME OF HIS DEATH ON AUGUST 24, 1959, REQUESTS THAT WE FILE AN INTERPLEADER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, PAYING THE AMOUNT IN QUESTION INTO THAT COURT AND MAKING THE VARIOUS PARTIES CLAIMING SUCH AMOUNT PARTIES TO THE ACTION.

YOUR LETTER WAS WRITTEN AS ATTORNEY FOR ALFRED N. BANKS, FATHER OF THE DECEASED. WE NOTE THAT NO CLAIM FOR THE AMOUNT OF COMPENSATION DUE HAS BEEN RECEIVED FROM YOUR CLIENT AND THAT HIS POWER OF ATTORNEY AUTHORIZING YOU TO ACT IN HIS BEHALF IS NOT ON FILE HERE. SHOULD IT BE DETERMINED THAT ALFRED N. BANKS IS ENTITLED TO THE AMOUNT DUE, PAYMENT COULD NOT BE MADE TO HIM UNLESS A CLAIM BEARING HIS SIGNATURE IS ON FILE HERE AND PAYMENT COULD NOT BE MADE THROUGH YOU WITHOUT THE ABOVE-MENTIONED POWER OF ATTORNEY.

WE KNOW OF NO AUTHORITY UNDER WHICH OUR OFFICE COULD INSTITUTE AN ACTION OF INTERPLEADER OR DEPOSIT THE AMOUNT OF COMPENSATION DUE INTO COURT PENDING DETERMINATION OF THE RIGHTS OF THE CLAIMING PARTIES. SECTION 1 OF THE ACT OF AUGUST 3, 1950, 64 STAT. 395, 5 U.S.C. 61F, PROVIDES:

"IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED CIVILIAN OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA (INCLUDING WHOLLY OWNED AND MIXED- OWNERSHIP GOVERNMENT CORPORATIONS) ALL UNPAID COMPENSATION DUE SUCH AN OFFICER OR EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, AND SUCH PAYMENT SHALL BE A BAR TO RECOVERY BY ANY OTHER PERSON OF AMOUNTS SO PAID:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH, AND RECEIVED BY SUCH AGENCY PRIOR TO THE OFFICER'S OR EMPLOYEE'S DEATH;

"SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH OFFICER, OR EMPLOYEE;

"THIRD, IF THERE BE NO BENEFICIARY OR SURVIVING SPOUSE, TO THE CHILD OR CHILDREN OF SUCH OFFICER OR EMPLOYEE, AND DESCENDANTS OF DECEASED CHILDREN, BY REPRESENTATION;

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF SUCH OFFICER OR EMPLOYEE, OR THE SURVIVOR OF THEM;

"FIFTH, IF THERE BE NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED OFFICER OR EMPLOYEE,OR IF THERE BE NONE, TO THE PERSON OR PERSONS DETERMINED TO BE ENTITLED THERETO UNDER THE LAWS OF THE DOMICILE OF THE DECEASED OFFICER OR EMPLOYEE.'

SECTION 3 OF THAT ACT DIRECTS US TO SETTLE ALL ACCOUNTS PAYABLE THEREUNDER. WE ARE WITHOUT AUTHORITY TO DELEGATE OUR DUTY TO SETTLE THE ACCOUNT IN QUESTION BY INSTITUTING AN ACTION OF INTERPLEADER.

UNDER THE ABOVE-QUOTED STATUTORY PROVISION RUBY GALES BANKS WILL TAKE THE TOTAL AMOUNT DUE SHOULD IT BE ESTABLISHED THAT SHE WAS THE COMMON-LAW WIFE OF HENRY BANKS. ALTHOUGH A DECEASED EMPLOYEE'S CHILDREN ARE DESIGNATED BY THE ABOVE-QUOTED STATUTE TO TAKE IN THE ABSENCE OF A SPOUSE OR DESIGNATED BENEFICIARY THE ONLY CHILD OF HENRY BANKS OF WHOM WE HAVE ANY KNOWLEDGE IS ILLEGITIMATE. THE RIGHT OF ILLEGITIMATE CHILDREN TO TAKE IS DETERMINED BY THE LAW OF THE DOMICILE OF THE DECEASED AT THE TIME OF HIS DEATH, AND SINCE SECTION 904 OF TITLE 113 OF THE GEORGIA CODE PROVIDES THAT AN ILLEGITIMATE CHILD CANNOT INHERIT FROM HIS FATHER, THE CHILD HAS NO RIGHT TO THE AMOUNT IN QUESTION. THEREFORE, SHOULD IT BE DETERMINED THAT RUBY GALES BANKS WAS NOT THE COMMON-LAW WIFE OF HENRY BANKS, THEN THE TOTAL AMOUNT WOULD, UNDER THE ABOVE-QUOTED STATUTE, BE PAYABLE TO YOUR CLIENT, ALFRED N. BANKS, AS FATHER OF THE DECEASED. THUS, IT APPEARS THAT THE ONLY POINT AT ISSUE IS WHETHER RUBY GALES BANKS WAS THE COMMON-LAW WIFE OF HENRY BANKS.

UPON RECEIPT OF A CERTIFIED COPY OF THE DECISION OF A COURT OF COMPETENT JURISDICTION RESOLVING THAT QUESTION, PAYMENT CAN BE MADE BY OUR OFFICE WITHOUT FURTHER PROCEEDINGS PROVIDING THE CLAIM OF THE PERSON ENTITLED TO PAYMENT HAS BEEN SUBMITTED TO US. ..END :