B-123365, JUL. 19, 1955

B-123365: Jul 19, 1955

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TO DETROIT TRUST COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 10. COLEMAN EDWARDS AND THE MOTHER OF GAIL CONSTANCE LEWIS NEVER MARRIED AND THERE IS NO INDICATION OF ACKNOWLEDGMENT OF PATERNITY BY HIM AS CONTEMPLATED BY SECTION 702.83. INSOFAR AS THE DECEDENT IS CONCERNED. WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. WHERE NO WIDOW SURVIVES AND NO DEMAND IS PRESENTED BY A LEGAL REPRESENTATIVE WE MAY ALLOW THE AMOUNT DUE THE ESTATE TO THE LEGAL HEIRS IN THE DESIGNATED ORDER OF PRECEDENCE AND A CHILD TAKES PRECEDENCE OVER PARENTS. AN ILLEGITIMATE CHILD WHO IS NOT A LEGAL HEIR OF THE DECEDENT IS NOT A CHILD FOR THE PURPOSES OF THE STATUTE. IT NOT BEING SHOWN THAT THE DECEASED ENLISTED MAN WAS SURVIVED BY A WIDOW OR A "CHILD.

B-123365, JUL. 19, 1955

TO DETROIT TRUST COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 10, 1955, AND JUNE 20, 1955, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 14, 1955, WHICH DISALLOWED YOUR CLAIM AS GUARDIAN OF GAIL CONSTANCE LEWIS, THE PURPORTED MINOR DAUGHTER OF COLEMAN EDWARDS, SERGEANT, UNITED STATES ARMY, DECEASED, FOR THE ACCRUED PAY DUE THE DECEDENT'S ESTATE.

FROM ALL THAT APPEARS, COLEMAN EDWARDS AND THE MOTHER OF GAIL CONSTANCE LEWIS NEVER MARRIED AND THERE IS NO INDICATION OF ACKNOWLEDGMENT OF PATERNITY BY HIM AS CONTEMPLATED BY SECTION 702.83, COMPILED LAWS OF MICHIGAN, 1948. ON THAT RECORD, INSOFAR AS THE DECEDENT IS CONCERNED, YOUR WARD'S STATUS APPEARS TO BE THAT OF AN ILLEGITIMATE CHILD AND UNDER SECTION 702.81, COMPILED LAWS OF MICHIGAN, 1948, ILLEGITIMATE CHILDREN INHERIT ONLY FROM THEIR MOTHER.

THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 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, THAN TO THE FATHER AND MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING * * *.'

SUCH STATUTE CONSTITUTES OUR SOLE AUTHORITY FOR DISPOSING OF THE AMOUNTS DUE THE ESTATE OF A DECEASED ENLISTED MAN OF THE ARMY TO PERSONS OTHER THAN A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. WHERE NO WIDOW SURVIVES AND NO DEMAND IS PRESENTED BY A LEGAL REPRESENTATIVE WE MAY ALLOW THE AMOUNT DUE THE ESTATE TO THE LEGAL HEIRS IN THE DESIGNATED ORDER OF PRECEDENCE AND A CHILD TAKES PRECEDENCE OVER PARENTS. HOWEVER, AN ILLEGITIMATE CHILD WHO IS NOT A LEGAL HEIR OF THE DECEDENT IS NOT A CHILD FOR THE PURPOSES OF THE STATUTE.

IT NOT BEING SHOWN THAT THE DECEASED ENLISTED MAN WAS SURVIVED BY A WIDOW OR A "CHILD," WITHIN THE CONTEMPLATION OF THE STATUTE, AND NO DEMAND HAVING BEEN PRESENTED BY A LEGAL REPRESENTATIVE OF THE ESTATE, OUR CLAIMS DIVISION, BY SETTLEMENT DATED JANUARY 11, 1955, ALLOWED ONE HALF OF THE AMOUNT DUE THE ESTATE, $2,292.74, TO JULIA B. EDWARDS, 2233 MACK AVENUE, DETROIT 7, MICHIGAN, AS MOTHER OF THE DECEDENT, AND THE REMAINING ONE-HALF WAS RESERVED FOR THE FATHER, AS EXPRESSLY PROVIDED BY THE STATUTE. CLAIM BY THE FATHER, JULIUS EDWARDS, 1013 DIVISION STREET, DETROIT 7, MICHIGAN, FOR HIS SHARE OF THE AMOUNT DUE, HAS NOW BEEN RECEIVED AND, IN THE ABSENCE OF A DEMAND FROM A LEGAL REPRESENTATIVE OF THE ESTATE, SETTLEMENT WILL ISSUE IN HIS FAVOR IN DUE COURSE.

WE HAVE NO RECORD OF YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY IN THIS CASE AND NEITHER THE SETTLEMENT OF JANUARY 14, 1955, NOR WHAT WE HAVE SAID IN THIS LETTER ABOUT THE ARREARS OF PAY HAS ANY APPLICATION TO THE PAYMENT OF THAT BENEFIT. SEE IN THAT CONNECTION THE ENCLOSED COPY OF DECISION DATED JANUARY 10, 1951, B-93064, 30 COMP. GEN. 277.