B-132494, JUL. 29, 1957

B-132494, JUL. 29, 1957

TO MRS. ESPERANZA F. TOLEN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1957, CONCERNING YOUR CLAIM, AS THE WIDOW OF CHARLES HAROLD TOLEN, CHIEF GUNNERS MATE, U.S. NAVY RETIRED, FOR BENEFITS DUE HIM ON ACCOUNT OF HIS DEATH ON MARCH 2, 1949. YOUR CLAIM FOR THE ARREARS OF PAY DUE HIM AS A RETIRED MEMBER OF THE NAVY WAS DENIED BY LETTER DATED MAY 7, 1957, FROM OUR CLAIMS DIVISION.

YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM ON THE BASIS THAT, SINCE YOU WERE THE FIRST WIFE OF CHARLES HAROLD TOLEN AND WERE NEVER DIVORCED FROM HIM, YOUR MARITAL STATUS CONTINUED UNTIL HIS DEATH AND THAT YOU ARE HIS LEGAL WIDOW.

IN THE LETTER OF MAY 7, 1957, YOU WERE ADVISED THAT ON APRIL 28, 1949, THERE WAS RECEIVED FROM THE DEPARTMENT OF THE NAVY AN OFFICIAL REPORT OF THE DEATH OF CHARLES HAROLD TOLEN IN WHICH MARY TOLEN, 37 SUMAC AVENUE, WAUKEGAN, ILLINOIS, WAS LISTED AS HIS WIFE AND NEXT OF KIN. MRS. MARY ELIZABETH TOLEN SUBSEQUENTLY FILED A CLAIM IN OUR OFFICE FOR THE ARREARS OF PAY DUE IN THIS CASE IN WHICH SHE CERTIFIED THAT SHE WAS THE WIDOW OF THE DECEASED AND FURNISHED A RECEIPTED BILL SHOWING THAT SHE HAD PAID THE FUNERAL EXPENSES. UPON THE BASIS OF THE RECORD BEFORE OUR OFFICE WE AUTHORIZED PAYMENT OF THE ARREARS OF PAY TO MARY ELIZABETH TOLEN AS THE WIDOW OF THE DECEASED. YOU WERE SO ADVISED BY OUR CLAIMS DIVISION AND ALSO THAT, SINCE THE FUNERAL EXPENSES EXCEEDED THE ARREARS OF PAY, MARY ELIZABETH TOLEN WOULD OTHERWISE BE ENTITLED TO THE AMOUNT DUE BY REASON OF HAVING PAID THOSE EXPENSES.

IN YOUR LETTER OF JANUARY 28, 1957, TO THE BUREAU OF NAVAL PERSONNEL, YOU SUBMITTED A CLAIM FOR PECUNIARY BENEFITS WHICH MIGHT ACCRUE TO YOU BY REASON OF THE DEATH OF YOUR HUSBAND. THE RECORD SHOWS THAT SUMS AGGREGATING $241.49 WERE DUE THE LATE CHARLES HAROLD TOLEN AT THE TIME OF HIS DEATH. THAT AMOUNT CONSISTED OF THE SUM OF $10.89 AS RETIRED PAY DUE HIM AT THE TIME OF HIS DEATH AS CHIEF GUNNERS MATE, U.S. NAVY, RETIRED, $153.73 FOR LUMP-SUM LEAVE PAYMENT AND $76.87 FOR COMPENSATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS, DURING THE PERIOD FEBRUARY 20 TO MARCH 2, 1949.

WITH RESPECT TO THE AMOUNT OF $10.89, THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH WAS IN EFFECT AT THE TIME THE SETTLEMENT IN THIS CASE ISSUED, PROVIDED THAT IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED MEMBERS OF THE NAVY 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 AND CERTAIN OTHER HEIRS AND CONTAINED THE FOLLOWING PROVISO:

"* * * PROVIDED, THAT THIS ACT SHALL NOT BE SO CONSTRUED AS TO PREVENT PAYMENT FROM THE AMOUNT DUE THE DECEDENT'S ESTATE OF FUNERAL EXPENSES, PROVIDED A CLAIM THEREFOR IS PRESENTED BY THE PERSON OR PERSONS WHO ACTUALLY PAID THE SAME BEFORE SETTLEMENT BY THE ACCOUNTING OFFICERS.'

IT WILL BE SEEN THAT THE LAW GAVE PREFERENCE TO CLAIMS PRESENTED BY THE PERSON WHO ACTUALLY PAID THE FUNERAL EXPENSES. SINCE MRS. MARY ELIZABETH TOLEN PAID THE FUNERAL EXPENSES, SHE WAS ENTITLED TO THE ARREARS OF PAY.

THE SUM OF $153.73, REPRESENTING THE LUMP-SUM LEAVE PAYMENT DUE THE DECEASED AS A CIVILIAN EMPLOYEE OF THE NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS, WAS AUTHORIZED TO BE PAID TO MRS. MARY ELIZABETH TOLEN AS THE DESIGNATED BENEFICIARY. THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PROVIDED THAT PAYMENT OF ACCRUED ANNUAL LEAVE DUE EMPLOYEES UPON SEPARATION FROM GOVERNMENT SERVICE SHALL BE PAID FIRST TO THE DESIGNATED BENEFICIARY. BY A COMMUNICATION DATED MAY 2, 1949, THE UNITED STATES CIVIL SERVICE COMMISSION REPORTED THAT CHARLES HAROLD TOLEN HAD DESIGNATED MARY ELIZABETH TOLEN, WIFE, TO RECEIVE THE LUMP SUM LEAVE PAYMENT IN THIS CASE.

RESPECTING THE AMOUNT OF $76.87, THE RECORD INDICATES THAT THAT AMOUNT WAS PAID TO MARY ELIZABETH TOLEN AS THE WIDOW OF CHARLES HAROLD TOLEN, DECEASED. THAT WAS AN AMOUNT DUE THE ESTATE OF THE DECEASED. UNDER THE LAW OF THE STATE OF ILLINOIS, IN WHICH THE DECEDENT WAS DOMICILED AT THE TIME OF HIS DEATH, THE FUNERAL EXPENSE IS A PREFERRED CLAIM AGAINST THE ESTATE OF A DECEDENT. SINCE MARY TOLEN PAID THE FUNERAL EXPENSES, PAYMENT TO HER OF THE ACCRUED COMPENSATION DUE DECEDENT AS A CIVILIAN EMPLOYEE OF THE NAVY WAS PROPER. THAT PAYMENT WAS MADE TO THE PERSON REPRESENTED BY THE DECEDENT TO BE HIS HEIR AND BENEFICIARY, AND THE UNITED STATES WOULD NOT BE REQUIRED TO MAKE A SECOND PAYMENT TO ANOTHER PERSON EVEN IF THE PAYMENT WERE ERRONEOUS. SEE UNITED STATES V. CAMPBELL, 139 F.2D 424.

ACCORDINGLY, THERE IS NO LEGAL BASIS UPON WHICH THIS OFFICE NOW MAY ALLOW YOUR CLAIM FOR ANY OF THE AMOUNTS DUE THE DECEDENT.