B-129909, JAN. 30, 1957

B-129909: Jan 30, 1957

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ROBERT WILLIAMS: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24. WERE ALLOWED TO THE MOTHER OF THE DECEDENT. 141.80 ALSO WAS PAID TO THE MOTHER. THERE WAS RECEIVED IN OUR CLAIMS DIVISION FROM THE DEPARTMENT OF THE ARMY A REPORT OF YOUR SON'S DEATH AND AN APPLICATION BY MRS. SUCH CLAIM HAVING BEEN ASSERTED ON THE BASIS THAT HE WAS NOT SURVIVED BY A WIDOW OR DESCENDANTS AND THAT HIS FATHER WAS DEAD. WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. IT WILL BE NOTED THAT THE GOVERNING STATUTE PROVIDED THAT IN THE ABSENCE OF A CLAIM BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE. THAT IS. WHERE HE IS NOT SURVIVED BY A WIDOW OR DESCENDANTS.

B-129909, JAN. 30, 1957

TO MR. ROBERT WILLIAMS:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1956, AND PREVIOUS CORRESPONDENCE, CONCERNING YOUR CLAIM FOR ONE-HALF OF THE ARREARS OF PAY DUE THE ESTATE OF YOUR SON, NATHANIEL WILLIAMS, SERGEANT, UNITED STATES ARMY, AS OF NOVEMBER 16, 1953, THE DATE OF RECEIPT OF NOTICE OF HIS DEATH BY THE DEPARTMENT OF THE ARMY.

BY CLAIMS DIVISION SETTLEMENTS DATED MARCH 16 AND SEPTEMBER 27, 1954, ARREARS OF PAY AND ALLOWANCES IN THE AMOUNTS OF $6,802.78 AND $45, RESPECTIVELY, WERE ALLOWED TO THE MOTHER OF THE DECEDENT. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT ON DECEMBER 31, 1953, THE SIX MONTHS' DEATH GRATUITY IN THE AMOUNT OF $1,141.80 ALSO WAS PAID TO THE MOTHER. YOU APPEAR TO BE OF THE BELIEF THAT ONE-HALF OF THE ARREARS OF PAY AND ALLOWANCES SHOULD BE RECOVERED FROM THE MOTHER AND BE PAID TO YOU.

ON MARCH 1, 1954, THERE WAS RECEIVED IN OUR CLAIMS DIVISION FROM THE DEPARTMENT OF THE ARMY A REPORT OF YOUR SON'S DEATH AND AN APPLICATION BY MRS. EVELYN MITCHELL, 119 26TH AVENUE SOUTH, SEATTLE 44, WASHINGTON, AS MOTHER, FOR THE AMOUNTS DUE THE DECEDENT'S ESTATE, SUCH CLAIM HAVING BEEN ASSERTED ON THE BASIS THAT HE WAS NOT SURVIVED BY A WIDOW OR DESCENDANTS AND THAT HIS FATHER WAS DEAD.

THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, PROVIDES, IN MATERIAL 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 * * *.'

IT WILL BE NOTED THAT THE GOVERNING STATUTE PROVIDED THAT IN THE ABSENCE OF A CLAIM BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE, THAT IS, AN EXECUTOR OR AN ADMINISTRATOR, AND WHERE HE IS NOT SURVIVED BY A WIDOW OR DESCENDANTS, THE AMOUNT DUE COULD BE ALLOWED BY THE ACCOUNTING OFFICERS TO THE MOTHER AND FATHER IN EQUAL PARTS WHERE BOTH SURVIVE OR IF EITHER BE DEAD THE ENTIRE AMOUNT COULD BE ALLOWED TO THE SURVIVOR. NO DEMAND HAVING BEEN MADE BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE REPORT OF DEATH SHOWING THAT THE DECEDENT HAD NAMED HIS MOTHER AS NEXT OF KIN AND BENEFICIARY FOR THE PURPOSES OF THE SIX MONTHS' DEATH GRATUITY, AND THE MOTHER HAVING CERTIFIED THAT YOU WERE DEAD, THE AMOUNTS DETERMINED BY THE DEPARTMENT OF THE ARMY TO BE DUE AS ARREARS OF PAY WERE CERTIFIED FOR PAYMENT TO THE MOTHER BY THE SETTLEMENTS OF MARCH 16 AND SEPTEMBER 27, 1954, PURSUANT TO THE LAW QUOTED ABOVE.

BY LETTER DATED JULY 15, 1955, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, 49, INDIANA, ADVISED US THAT INFORMATION FURNISHED THE CENTER BY THE VETERANS ADMINISTRATION INDICATED THAT YOU WERE NOT DEAD AS STATED BY MRS. MITCHELL IN HER APPLICATION FOR THE AMOUNTS FOUND TO BE DUE THE DECEDENT'S ESTATE BUT THAT YOU WERE STILL LIVING. THE FIRST INQUIRY FROM YOU CONCERNING THE MATTER WAS MADE IN YOUR LETTER OF AUGUST 3, 1956.

BASED ON THE INFORMATION RECEIVED BY US AFTER THE SETTLEMENTS HAD BEEN MADE IN FAVOR OF MRS. MITCHELL, DEMAND WAS MADE UPON HER FOR REFUND OF ONE -HALF OF THE AMOUNT ALLOWED. SUCH DEMAND HAS NOT MET WITH A FAVORABLE RESPONSE AND THE RECORD INDICATES THAT MRS. MITCHELL'S FINANCIAL STATUS IS SUCH THAT FURTHER COLLECTION PROCEEDINGS AGAINST HER WOULD BE FRUITLESS.

SINCE THE PAYMENTS MADE TO MRS. MITCHELL, THE LARGER MORE THAN A YEAR BEFORE WE RECEIVED NOTICE THAT YOU SURVIVED YOUR SON, RESULTED LARGELY FROM YOUR DELAY IN PRESENTING A CLAIM, AS WELL AS FROM THE FAILURE OF YOUR SON TO DISCLOSE THAT HIS FATHER WAS LIVING, AND IN VIEW OF OUR INABILITY TO RECOVER ONE-HALF OF THE AMOUNT ALLOWED TO THE MOTHER, NO PAYMENT MAY BE MADE TO YOU. COMPARE UNITED STATES V. CAMPBELL, 139 F.2D 424; UNITED STATES V. BARKER, 70 F.2D 1002, AND EVANGELIOU V. UNITED STATES, 84 F.SUPP. 609. MOREOVER, SINCE THE RECORD SHOWS THAT AT THE TIME OF THE SETTLEMENTS TWO OF YOUR MINOR CHILDREN WERE BEING SUPPORTED BY THEIR MOTHER WITHOUT ASSISTANCE FROM YOU, IT WOULD APPEAR THAT YOUR RIGHT TO ANY PART OF THE AMOUNTS ALLOWED TO MRS. MITCHELL WOULD BE A MATTER FOR ADJUSTMENT BETWEEN YOU AND HER, IT BEING ASSUMED THAT AT LEAST A PART OF THE AMOUNTS ALLOWED TO HER WAS USED FOR THE SUPPORT OF SUCH CHILDREN.

THE LEGISLATIVE HISTORY OF THE ACT OF FEBRUARY 25, 1946, WHICH REMOVED THE LIMITATION IN PRIOR STATUTES ON THE SAME SUBJECT UPON THE MAXIMUM AMOUNT THAT COULD BE PAID WITHOUT THE REQUIREMENT OF APPOINTMENT OF A LEGAL REPRESENTATIVE SHOWS AN UNMISTAKABLE INTENT ON THE PART OF THE CONGRESS THAT AMOUNTS DUE SHOULD BE PAID PROMPTLY TO CLAIMING NEXT OF KIN AS SPECIFIED THEREIN. HENCE, THERE IS REASONABLE GROUND FOR THE VIEW THAT A PERSON CLAIMING PART OF AN AMOUNT DUE, WHO HAD NOT MADE HIS IDENTITY AND WHEREABOUTS KNOWN UNTIL LONG AFTER THE ENLISTED MAN'S DEATH AND AN UNREASONABLE TIME SUBSEQUENT TO PAYMENT TO THE CLAIMING HEIR IS GUILTY OF LACHES AND SINCE THE RIGHTS OF THIRD PARTIES (THE GOVERNMENT) ARE AFFECTED THEREBY HE MUST STAND THE CONSEQUENCES OF HIS DELAY.