B-132724, AUG. 23, 1957

B-132724: Aug 23, 1957

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ARE AS FOLLOWS: "* * * ALL UNPAID COMPENSATION DUE SUCH AN OFFICER OR EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH. TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH. " THE EFFECT OF THE STATUTE IS TO GIVE THE EMPLOYEE THE POWER TO DESIGNATE A BENEFICIARY AND. THE BENEFICIARY IS AUTOMATICALLY DESIGNATED IN THE ORDER FIXED BY THE STATUTE. DOUBT ARISES AS TO WHO IS THE PROPER WIDOWER. WHILE GENERALLY IT HAS BEEN HELD THAT WHERE A PERSON CONTRACTED A SECOND MARRIAGE WHILE HIS FIRST SPOUSE WAS STILL ALIVE.

B-132724, AUG. 23, 1957

TO MISS DOROTHY J. AUSTIN, AUTHORIZED CERTIFYING OFFICER, FEDERAL CIVIL DEFENSE ADMINISTRATION:

YOUR LETTER OF JULY 24, 1957, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED REPRESENTING A CLAIM FOR UNPAID COMPENSATION DUE MRS. PAULINE S. BAUMGARDNER, AN EMPLOYEE OF THE FEDERAL CIVIL DEFENSE ADMINISTRATION AT THE TIME OF HER DEATH ON FEBRUARY 24, 1957.

THE VOUCHER NAMES MR. WILLIAM C. ARMSTRONG, JR., THE ATTORNEY FOR MR. ALVIN DEMPS--- THE OSTENSIBLE WIDOWER OF THE DECEASED--- AS PAYEE. THIS REGARD, THE VOUCHER SHOULD BE CORRECTED TO SHOW MR. ALVIN DEMPS AS PAYEE. THE CHECK DRAWN IN PAYMENT MAY, HOWEVER, BE FORWARDED IN CARE OF THE ATTORNEY IN ACCORDANCE WITH THE CLAIMANT'S REQUEST.

THE RECORD DISCLOSES THAT THE DECEDENT DID NOT DESIGNATE A BENEFICIARY IN ACCORDANCE WITH THE ACT OF AUGUST 3, 1950, 64 STAT. 395, 5 U.S.C. 61 (F). THE PROVISIONS OF THE STATUTE, SO FAR AS HERE APPLICABLE, ARE AS FOLLOWS:

"* * * ALL UNPAID COMPENSATION DUE SUCH AN OFFICER OR EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, * * *

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH, * * *

"SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH OFFICER, OR EMPLOYEE; "

THE EFFECT OF THE STATUTE IS TO GIVE THE EMPLOYEE THE POWER TO DESIGNATE A BENEFICIARY AND, IN THE ABSENCE OF SUCH DESIGNATION BY THE EMPLOYEE, THE BENEFICIARY IS AUTOMATICALLY DESIGNATED IN THE ORDER FIXED BY THE STATUTE. SINCE IN THIS CASE THE DECEASED REMARRIED WITHOUT OBTAINING A FINAL DECREE OF DIVORCE FROM HER FIRST HUSBAND, DOUBT ARISES AS TO WHO IS THE PROPER WIDOWER.

WHILE GENERALLY IT HAS BEEN HELD THAT WHERE A PERSON CONTRACTED A SECOND MARRIAGE WHILE HIS FIRST SPOUSE WAS STILL ALIVE, IT WILL BE PRESUMED, IN FAVOR OF THE VALIDITY OF THE SECOND MARRIAGE, THAT THE FIRST MARRIAGE WAS LEGALLY DISSOLVED BY A DIVORCE BEFORE THE SECOND MARRIAGE WAS ENTERED INTO; AND ONE WHO ASSERTS THE INVALIDITY OF THE SECOND MARRIAGE MUST SHOW THAT THERE HAS NOT BEEN ANY DIVORCE; HOWEVER, THE FILE CONTAINS AN AFFIDAVIT SIGNED BY THE PARENTS OF THE DECEASED ACKNOWLEDGING THAT THE DECEASED WAS STILL MARRIED TO ALVIN DEMPS AT THE TIME OF HER DEATH.

THERE ALSO APPEARS IN THE FILE A COPY OF A WAIVER EXECUTED BY THE SECOND HUSBAND, JOHN RICHARD BAUMGARDNER, OF UNPAID COMPENSATION DUE FROM THE GOVERNMENT TO THE DECEASED. IN VIEW OF THE FAILURE OR INABILITY OF THE SECOND HUSBAND TO FURNISH EVIDENCE THAT THE DECEASED HAD BEEN DIVORCED FROM ALVIN DEMPS, HIS WAIVER MAY, FOR THE PURPOSE OF THIS CASE, BE CONSIDERED AN ESTOPPEL.

FURTHER, THE FILE CONTAINS CORRESPONDENCE FROM THE ATTORNEY WHO WAS RETAINED BY THE DECEASED TO BRING SUIT FOR DIVORCE FROM HER FIRST HUSBAND. THE ATTORNEY SAYS THAT THE DECEASED REMARRIED WHILE THE SUIT WAS STILL PENDING AND PRIOR TO AN ADJUDICATION OF THE MATTER. ACCORDINGLY, THE INVALIDITY OF THE SECOND MARRIAGE APPEARS TO BE SUBSTANTIATED.

THEREFORE, AND IN VIEW OF THE FAILURE TO ESTABLISH THE DISSOLUTION OF THE MARRIAGE OF MRS. PAULINE S. BAUMGARDNER TO ALVIN DEMPS, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT TO ALVIN DEMPS AS INDICATED ABOVE, IF OTHERWISE CORRECT.