B-126261, FEB. 3, 1956

B-126261: Feb 3, 1956

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MARY GOCHENAUR: REFERENCE IS MADE TO A LETTER DATED OCTOBER 28. IN YOUR APPLICATIONS FOR THE AMOUNT DUE THE ESTATE OF THE DECEDENT YOU CERTIFIED THAT HE WAS NOT SURVIVED BY A WIDOW. THAT THE NAME OF HIS FATHER IS UNKNOWN. OF OUR CLAIMS DIVISION YOU WERE ADVISED THAT THE DECREE OF JULY 31. SINCE THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE THE ESTATES OF DECEASED PERSONNEL OF THE ARMED FORCES IS NOT GOVERNED BY STATE LAW. YOU WERE ALSO ADVISED THAT THOSE ACTS PROVIDE THAT IN THE ABSENCE OF A DEMAND BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE THE AMOUNT DUE MAY BE ALLOWED ONLY TO THE HEIRS NAMED IN THE STATUTE AND IN THE ORDER OF PRECEDENCE STATED. WESNER URGES THAT THE AMOUNT DUE BE ALLOWED TO YOU ON THE BASIS THAT YOU ARE THE UNCLE AND AUNT OF THE DECEDENT AND ENTITLED TO INHERIT AS HIS HEIRS AND NEXT OF KIN UNDER THE PENNSYLVANIA LAWS OF DECEDENT AND DISTRIBUTION WHICH LAWS WERE NOT AFFECTED BY THE DECREE OF JULY 31.

B-126261, FEB. 3, 1956

TO MR. EDWARD J. GRILL, MRS. MARY GOCHENAUR:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 28, 1955, FORWARDED HERE BY HEADQUARTERS, MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA, WRITTEN ON YOUR BEHALF BY MR. GRANT E. WESNER, CONCERNING YOUR CLAIM FOR ARREARS OF PAY AND ALLOWANCES DUE THE ESTATE OF YOUR LATE NEPHEW, LAWRENCE H. GRILL, WHO DIED ON JUNE 11, 1954, WHILE SERVING AS STAFF SERGEANT, UNITED STATES AIR FORCE.

IN YOUR APPLICATIONS FOR THE AMOUNT DUE THE ESTATE OF THE DECEDENT YOU CERTIFIED THAT HE WAS NOT SURVIVED BY A WIDOW, DESCENDANTS, OR MOTHER, AND THAT THE NAME OF HIS FATHER IS UNKNOWN. IN SUPPORT OF YOUR APPLICATIONS YOU SUBMITTED A CERTIFIED TRUE COPY OF A DECREE ISSUED JULY 31, 1954, BY THE ORPHANS' COURT OF BERKS COUNTY, PENNSYLVANIA, PURSUANT TO SECTION 202 OF THE PENNSYLVANIA FIDUCIARIES ACT OF 1949, AS AMENDED, DISTRIBUTING TO YOU AS THE ONLY HEIRS AND NEXT OF KIN OF THE DECEDENT, CERTAIN OF HIS PERSONAL PROPERTY, CONSISTING OF AN AUTOMOBILE, A CAMERA, AND A SUM OF MONEY IN ENGLISH AND AMERICAN CURRENCY. BY LETTERS DATED AUGUST 25, 1955,OF OUR CLAIMS DIVISION YOU WERE ADVISED THAT THE DECREE OF JULY 31, 1954, COULD NOT BE ACCEPTED AS AUTHORITY FOR THE PAYMENT TO YOU OF THE PAY AND ALLOWANCES DUE, SINCE THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE THE ESTATES OF DECEASED PERSONNEL OF THE ARMED FORCES IS NOT GOVERNED BY STATE LAW, BUT BY THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30. YOU WERE ALSO ADVISED THAT THOSE ACTS PROVIDE THAT IN THE ABSENCE OF A DEMAND BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE THE AMOUNT DUE MAY BE ALLOWED ONLY TO THE HEIRS NAMED IN THE STATUTE AND IN THE ORDER OF PRECEDENCE STATED, AND THAT THE TERM "DULY APPOINTED LEGAL REPRESENTATIVE" HAS BEEN CONSTRUED TO MEAN AN EXECUTOR OR AN ADMINISTRATOR APPOINTED BY A COURT OF COMPETENT JURISDICTION. IN THE LETTER OF OCTOBER 28, 1955, MR. WESNER URGES THAT THE AMOUNT DUE BE ALLOWED TO YOU ON THE BASIS THAT YOU ARE THE UNCLE AND AUNT OF THE DECEDENT AND ENTITLED TO INHERIT AS HIS HEIRS AND NEXT OF KIN UNDER THE PENNSYLVANIA LAWS OF DECEDENT AND DISTRIBUTION WHICH LAWS WERE NOT AFFECTED BY THE DECREE OF JULY 31,1954.

AS YOU HAVE BEEN ADVISED, THE SETTLEMENT OF CLAIMS OF THIS NATURE IS NOT GOVERNED BY STATE LAW BUT BY FEDERAL STATUTE, THAT IS, THE CITED ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946. THE FEDERAL STATUTE DOES NOT AUTHORIZE AN ALLOWANCE OF THE PAY AND ALLOWANCES ON THE BASIS OF STATE LAWS DISPENSING WITH ADMINISTRATION ON THE ESTATES OF DECEDENTS WHERE SMALL AMOUNTS ARE INVOLVED BUT PROVIDES, WITHOUT OTHER CONDITION, THAT WHERE NO DEMAND IS PRESENTED BY "A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE" THE AMOUNT DUE MAY BE ALLOWED TO THE NAMED LEGAL HEIRS IN THE ORDER OF PRECEDENCE STATED. SUCH DESIGNATED ORDER OF PRECEDENCE OF HEIRS GOES NO FURTHER THAN BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS. HENCE, THERE IS NO AUTHORITY UNDER THE STATUTE TO ALLOW THE AMOUNT DUE TO AN UNCLE OR AUNT EVEN THOUGH DISTRIBUTION WOULD BE MADE TO THEM BY AN ADMINISTRATOR UNDER APPLICABLE STATE LAW. THE TERM "DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE" IN THIS AND SIMILAR STATUTES CONSISTENTLY HAS BEEN CONSTRUED AND APPLIED AS HAVING REFERENCE GENERALLY TO A DULY APPOINTED ADMINISTRATOR OR EXECUTOR. CF. THOMPSON ADM-R. V. UNITED STATES, 20 C.CLS. 276.

ACCORDINGLY, WE TRUST THAT YOU WILL UNDERSTAND THAT THE AMOUNT DUE THIS DECEDENT'S ESTATE MAY NOT BE ALLOWED TO YOU IN THE CAPACITY OF HIS UNCLE AND AUNT OR ON THE BASIS OF THE DECREE ISSUED BY THE ORPHANS' COURT OF BERKS COUNTY, PENNSYLVANIA, BUT MAY BE ALLOWED ONLY TO A DULY APPOINTED EXECUTOR OR ADMINISTRATOR OF YOUR LATE NEPHEW'S ESTATE OR TO THE DECEDENT'S FATHER, IN THE EVENT HE IS ALIVE AND ESTABLISHES THAT HE IS ENTITLED TO RECEIVE THE AMOUNT DUE.