B-135628, APR. 14, 1958

B-135628: Apr 14, 1958

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OFFICE OF THE CHIEF OF NAVAL OPERATIONS: REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 19. THAT ACT PROVIDES THAT "UPON APPLICATION OF ANY OFFICER OR FORMER OFFICER (INCLUDING THE WIDOWS AND LEGAL REPRESENTATIVES OF SUCH OFFICERS WHO ARE DECEASED)" WHO. THE COMPTROLLER GENERAL WILL PAY IN THE CASE OF SUCH OFFICERS THE DIFFERENCE BETWEEN THE PAY OF THE OLD AND THE NEW RANK. WAS APPOINTED EXECUTRIX OF YOUR FATHER'S ESTATE BY THE SUPERIOR COURT IN AND FOR THE COUNTY OF SAN DIEGO. SHE WAS ALLOWED. BEFORE THE ESTATE OF YOUR FATHER WAS SETTLED. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 12. OF THE CLAIMS DIVISION FOR THE REASON THAT PAYMENT WAS AUTHORIZED ONLY TO OFFICERS OR TO FORMER OFFICERS.

B-135628, APR. 14, 1958

TO CAPTAIN CYRUS C. COLE, USN, OFFICE OF THE CHIEF OF NAVAL OPERATIONS:

REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 19, AND APRIL 1, 1958, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR AN AMOUNT BELIEVED TO BE DUE IN THE CASE OF YOUR LATE FATHER, REAR ADMIRAL CYRUS V. COLE, USN, UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 2, 1957, 71 STAT. 575.

THAT ACT PROVIDES THAT "UPON APPLICATION OF ANY OFFICER OR FORMER OFFICER (INCLUDING THE WIDOWS AND LEGAL REPRESENTATIVES OF SUCH OFFICERS WHO ARE DECEASED)" WHO, UPON ADVANCEMENT IN RANK, DID NOT RECEIVE AN INCREASE IN THE RATES OF PAY OR ALLOWANCES FOR ANY PART OF THE PERIOD BEGINNING JULY 1, 1932, AND ENDING SEPTEMBER 30, 1934, THE COMPTROLLER GENERAL WILL PAY IN THE CASE OF SUCH OFFICERS THE DIFFERENCE BETWEEN THE PAY OF THE OLD AND THE NEW RANK.

IT APPEARS THAT YOUR FATHER DIED JULY 29, 1952; THAT YOUR MOTHER, JULIANA B. COLE, WAS APPOINTED EXECUTRIX OF YOUR FATHER'S ESTATE BY THE SUPERIOR COURT IN AND FOR THE COUNTY OF SAN DIEGO, CALIFORNIA; AND THAT BY SETTLEMENT DATED NOVEMBER 25, 1952, OF OUR CLAIMS DIVISION, SHE WAS ALLOWED, AS EXECUTRIX, THE SUM OF $538.75, REPRESENTING ARREARS OF RETIRED PAY DUE THE ESTATE OF YOUR FATHER; AND THAT SHE DIED FEBRUARY 28, 1953, BEFORE THE ESTATE OF YOUR FATHER WAS SETTLED. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 12, 1958, OF THE CLAIMS DIVISION FOR THE REASON THAT PAYMENT WAS AUTHORIZED ONLY TO OFFICERS OR TO FORMER OFFICERS, INCLUDING THE WIDOWS AND LEGAL REPRESENTATIVES OF SUCH OFFICERS.

THERE WAS ENCLOSED WITH YOUR LETTER OF MARCH 18, 1958, A PHOTOSTATIC COPY OF A LETTER DATED NOVEMBER 22, 1957, TO YOU, FROM THE CLERK OF SAN DIEGO COUNTY, CALIFORNIA, WHICH SAYS THAT YOU WERE NOT APPOINTED EXECUTOR OF THE ESTATE OF YOUR FATHER AND THAT ADMINISTRATION OF SUCH ESTATE WAS CLOSED AND DISTRIBUTION MADE TO YOU AS EXECUTOR OF THE ESTATE OF YOUR MOTHER. THE ENCLOSURES OF THE LETTER OF APRIL 1, 1958, CONTAIN NO ORDER APPOINTING OR RECOGNIZING YOU AS THE EXECUTOR OR ADMINISTRATOR OF THE ESTATE OF YOUR FATHER. YOU CONTEND THAT THE DISTRIBUTION TO YOU OF YOUR FATHER'S ESTATE CONSTITUTED RECOGNITION IN FACT OF YOU AS YOUR FATHER'S LEGAL REPRESENTATIVE ON THE DEATH OF YOUR MOTHER.

THE TERM "LEGAL REPRESENTATIVE" IN ITS PROPER LEGAL SENSE GENERALLY REFERS TO THE PERSON CONSTITUTED REPRESENTATIVE BY THE PROPER COURT. AMER.JUR. 369; 33 C.J.S. 880; BALLENTINE'S LAW DICTIONARY, 1948 ED., P. 738. IN THE ABSENCE OF ANYTHING APPEARING IN THE CONTEXT, THE TERM FOUND IN A STATUTE CONSISTENTLY HAS BEEN INTERPRETED BY THE COURTS AS MEANING "EXECUTORS AND ADMINISTRATORS.' SEE BRIGGS V. WALKER, 171 U.S. 466; CHAPLIN, JR., ET AL. V. UNITED STATES, 19 C.CLS. 424; THOMPSON, ADMINISTRATOR V. UNITED STATES, 20 ID. 276. THE ACT OF SEPTEMBER 2, 1957, IS BARE OF ANY WORD OR SENTENCE QUALIFYING IN ANY FORM OR MANNER THE TERM "LEGAL REPRESENTATIVES.' NEITHER THE TITLE OF SUCH ACT NOR ITS LEGISLATIVE HISTORY DISCLOSES ANY PURPOSE WHICH WOULD JUSTIFY OR PERMIT AN INTERPRETATION OF THE TERM NOT CONSISTENT WITH ITS PRIMARY AND ORDINARY SENSE. HENCE, ALL CLAIMS UNDER THE ACT ARE PAYABLE ONLY (1) TO THE OFFICERS OR FORMER OFFICERS INVOLVED OR (2) TO EITHER THE WIDOWS OR LEGAL REPRESENTATIVES OF SUCH DECEASED OFFICERS OR FORMER OFFICERS. SEE 7 COMP. GEN. 486.

ACCORDINGLY, YOUR CLAIM, FOR ANY AMOUNT DUE UNDER THE ACT OF SEPTEMBER 2, 1957, MAY NOT BE ..END :