A-58284, NOVEMBER 23, 1934, 14 COMP. GEN. 411

A-58284: Nov 23, 1934

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APPROPRIATED FUNDS MAY NOT BE CHARGED WITH PAY OF A RETIRED OFFICER OF THE NAVY FOR ANY PERIOD SUBSEQUENT TO THE TIME OF HIS UNEXPLAINED DISAPPEARANCE AFTER WHICH THERE IS NO EVIDENCE OF HIS HAVING BEEN ALIVE. THE BURDEN OF PROOF AS TO THE TIME OF DEATH IS UPON THE PERSON ASSERTING THAT IT TOOK PLACE AT A PARTICULAR TIME. THERE IS NO PRESUMPTION OF LAW AS TO TIME OF DEATH WHICH IS A FACT TO BE ESTABLISHED BY COMPETENT EVIDENCE. WHICH WAS BASED UPON PRESUMPTIVE EVIDENCE. CARTER WAS A LIEUTENANT COMMANDER. HE WAS DECLARED TO BE LEGALLY DEAD AS OF THE 7TH DAY OF FEBRUARY 1934. FOR THE 7 SUCCEEDING YEARS IS BASED UPON THE PRESUMPTION THAT LIFE CONTINUES UNTIL THE CONTRARY IS SHOWN OR UNTIL 7 YEARS AFTER UNEXPLAINED DISAPPEARANCE.

A-58284, NOVEMBER 23, 1934, 14 COMP. GEN. 411

RETIRED PAY - ARREARS - EVIDENCE - PRESUMPTION OF DEATH PAY DUE A RETIRED OFFICER OF THE NAVY AT THE TIME OF HIS DISAPPEARANCE MAY BE PAID TO AN ADMINISTRATOR OF HIS ESTATE APPOINTED AFTER A JUDICIAL DECREE OF DEATH, BASED UPON EVIDENCE OF UNEXPLAINED ABSENCE FOR A PERIOD OF 7 YEARS. IN THE ABSENCE OF SATISFACTORY EVIDENCE AS TO THE TIME OF DEATH, APPROPRIATED FUNDS MAY NOT BE CHARGED WITH PAY OF A RETIRED OFFICER OF THE NAVY FOR ANY PERIOD SUBSEQUENT TO THE TIME OF HIS UNEXPLAINED DISAPPEARANCE AFTER WHICH THERE IS NO EVIDENCE OF HIS HAVING BEEN ALIVE. IN CASE OF PRESUMPTION OF DEATH, THE BURDEN OF PROOF AS TO THE TIME OF DEATH IS UPON THE PERSON ASSERTING THAT IT TOOK PLACE AT A PARTICULAR TIME. THERE IS NO PRESUMPTION OF LAW AS TO TIME OF DEATH WHICH IS A FACT TO BE ESTABLISHED BY COMPETENT EVIDENCE.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 23, 1934:

THE CENTRAL HANOVER BANK AND TRUST CO. OF NEW YORK, AS ONE OF THE ADMINISTRATORS OF THE ESTATE OF FIDELIO S. CARTER, LIEUTENANT COMMANDER, UNITED STATES NAVY, RETIRED, DECLARED TO BE LEGALLY DEAD BY DECREE OF THE SURROGATE'S COURT OF THE COUNTY OF NEW YORK, WHICH WAS BASED UPON PRESUMPTIVE EVIDENCE, HAS FILED CLAIM FOR $25,200, REPRESENTING THE AMOUNT OF RETIRED PAY ALLEGED TO BE DUE DECEASED FROM DECEMBER 31, 1926, UNTIL THE DATE OF HIS DEATH.

DURING DECEMBER 1926 AND JANUARY 1927, FIDELIO S. CARTER WAS A LIEUTENANT COMMANDER, UNITED STATES NAVY, RETIRED, AND ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF $328.12 PER MONTH. HE RECEIVED SUCH PAY TO AND INCLUDING DECEMBER 31, 1926. ON FEBRUARY 7, 1927, HE DISAPPEARED AND NOTHING HAS BEEN HEARD OF HIM SINCE THAT TIME. ON THE 19TH DAY OF MAY 1934, BY DECREE OF THE SURROGATE'S COURT OF NEW YORK COUNTY, NEW YORK, HE WAS DECLARED TO BE LEGALLY DEAD AS OF THE 7TH DAY OF FEBRUARY 1934, THE END OF A 7-YEAR PERIOD OF UNEXPLAINED ABSENCE.

THE CLAIM OF THE ADMINISTRATOR FOR ACCUMULATED RETIRED PAY FROM FEBRUARY 7, 1927, FOR THE 7 SUCCEEDING YEARS IS BASED UPON THE PRESUMPTION THAT LIFE CONTINUES UNTIL THE CONTRARY IS SHOWN OR UNTIL 7 YEARS AFTER UNEXPLAINED DISAPPEARANCE.

IT IS DISCLOSED BY THE NAVY REGISTER THAT LT.COMDR. FIDELIO S. CARTER WAS BORN JUNE 26, 1853; THAT HE ENTERED THE SERVICE ON SEPTEMBER 30, 1870; WAS COMMISSIONED IN THE RANK OF LIEUTENANT COMMANDER AS OF MARCH 3, 1899, AND WAS RETIRED FOR DISABILITY WITH SUCH RANK ON JUNE 30, 1904, PURSUANT TO PROVISIONS OF SECTION 1453, REVISED STATUTES.

UPON RETIREMENT, THE LAW AUTHORIZED PAYMENT TO HIM OF RETIRED PAY UNTIL HIS STATUS AS A RETIRED OFFICER WAS TERMINATED. IT APPEARS THAT HE WAS LAST SEEN ALIVE ON FEBRUARY 7, 1927, AND THERE IS NO EVIDENCE OF HIS ACTUALLY HAVING BEEN ALIVE AFTER THAT TIME. FOR THE PURPOSE OF ESTABLISHING A CLAIM AGAINST THE UNITED STATES, THE BURDEN OF PROOF IS UPON THE CLAIMANT. IN THE ABSENCE OF SATISFACTORY EVIDENCE ESTABLISHING THAT LIEUTENANT COMMANDER CARTER ACTUALLY LIVED SUBSEQUENTLY TO FEBRUARY 7, 1927, THERE IS NO BASIS FOR CHARGING APPROPRIATED FUNDS WITH RETIRED PAY AFTER THAT DATE.

A JUDICIAL DECREE OF DEATH IS TO BE DISTINGUISHED FROM ACTUAL DEATH. THE ESTABLISHED DATE OF ACTUAL DEATH MAY BE ACCEPTED AS CONCLUSIVE EVIDENCE THAT DECEDENT WAS ALIVE FROM DATE OF BIRTH TO DATE OF DEATH. A JUDICIAL DECREE OF DEATH AT AND AFTER A FIXED TIME BASED UPON PRESUMPTIVE EVIDENCE IS NOT CONCLUSIVE ON AN ALLEGED DECEDENT WHO WAS IN FACT ALIVE. SEE SCOTT V. MCNEAL, 154 U.S. 34. SUCH A DECREE IS NO EVIDENCE THAT SUCH PERSON LIVED FOR EXACTLY 7 YEARS, OR FOR ANY TIME AFTER HIS DISAPPEARANCE. THE CONTRARY, LOGICAL DEDUCTION FROM SUCH EVIDENCE LEADS TO THE CONCLUSION THAT LIFE ENDED AT OR IMMEDIATELY AFTER UNEXPLAINED DISAPPEARANCE UNDER ORDINARY CIRCUMSTANCES.

WHETHER PRESUMPTION OF DEATH FROM 7 YEARS' ABSENCE RAISES A PRESUMPTION AS TO THE TIME OF THE DEATH IS A QUESTION ON WHICH THE COURTS HAVE NOT ALWAYS AGREED. THE ENGLISH RULE WAS THAT THERE WAS NO PRESUMPTION AS TO TIME OF DEATH WHICH WAS TO BE DETERMINED FROM THE FACTS AND CIRCUMSTANCES OF EACH PARTICULAR CASE. WHILE THERE ARE SOME DECISIONS TO THE CONTRARY, THAT IS THE GENERAL RULE IN THIS COUNTRY. SEE 17 CORPUS JURIS, 1174. THE TIME OF DEATH IN SUCH CASES MUST BE ESTABLISHED BY COMPETENT EVIDENCE SATISFACTORY TO THE COURT OR JURY TRYING THE CASE, AND THE BURDEN OF PROOF IS UPON THE PARTY ASSERTING A CLAIM OF DEATH AT ANY PARTICULAR TIME. SEE CASES CITED IN NOTE 3, 17 C.J. 1174. THIS IS THE ESTABLISHED RULE IN THE UNITED STATES. SEE DAVIE V. BRIGGS, 97 U.S. 628, AND AUTHORITIES THEREIN CITED.

THE GENERAL RULE OF LAW ESTABLISHED AND SETTLED BY NUMEROUS DECISIONS OF THE COURTS OF ENGLAND AND AMERICA, AND ESPECIALLY THE DECISIONS OF THE SUPREME COURT, CITED, IS THE RULE OF THIS OFFICE; THE UNITED STATES IS NOT BOUND BY A DECREE OF THE SURROGATE'S COURT ENTERED ON THE BASIS OF PRESUMPTIVE EVIDENCE, OR AS A PRESUMPTION OF LAW, IN AN EX PARTE PROCEEDING, OR ACTION TO WHICH THE UNITED STATES IS NOT A PARTY.

THE FACT THAT LIEUTENANT COMMANDER CARTER WAS A MAN OF ADVANCED YEARS, BEING OVER 73 YEARS OF AGE AT THE TIME OF HIS DISAPPEARANCE; THAT HE HAD BEEN RETIRED FROM ACTIVE SERVICE ON ACCOUNT OF DISABILITY INCIDENT TO SERVICE IN 1904, AND HAS NOT BEEN HEARD OF FOR MORE THAN 7 YEARS; AND THAT THERE IS NO APPARENT REASON OTHER THAN DEATH, FOR HIS FAILURE TO COMMUNICATE WITH RELATIVES AND ASSOCIATES, AND HAS MADE NO CLAIM FOR RETIRED PAY TO WHICH HE WOULD KNOW HE WAS ENTITLED IF ALIVE AND RATIONAL, IN THE ABSENCE OF OTHER PROOF TO THE CONTRARY, IS SUCH PRIMA FACIE EVIDENCE OF HIS DEATH AS WOULD CREATE A PRESUMPTION OF DEATH, AND THE DECREE OF THE SURROGATE'S COURT DECLARING HIM TO BE LEGALLY DEAD, AND APPOINTING ADMINISTRATORS OF HIS ESTATE WILL NOT BE QUESTIONED.

ACCORDINGLY, SETTLEMENT WILL BE STATED IN FAVOR OF THE ADMINISTRATOR FOR RETIRED PAY DUE HIM ON FEBRUARY 7, 1927, THE LAST DATE ON WHICH THE ALLEGED DECEDENT WAS KNOWN TO HAVE BEEN ALIVE. NO EVIDENCE OF CONTINUANCE OF LIFE SUBSEQUENT TO THAT TIME HAVING BEEN SUBMITTED, THE CLAIM FOR RETIRED PAY FOR ANY PERIOD AFTER FEBRUARY 7, 1927, MUST BE AND IS DENIED.