B-145563, JUL. 19, 1961

B-145563: Jul 19, 1961

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WHICH CLAIM WAS DENIED BY LETTER DATED APRIL 18. FROM OUR OFFICE FOR THE REASON THAT THE RECORDS INDICATED THE DECEASED SERVICEMAN WAS SURVIVED BY A WIDOW. IT MUST BE PRESUMED THAT SHE IS DEAD. THE GENERAL RULE IS THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME. IS THAT HE IS STILL ALIVE UNTIL SUCH PRESUMPTION IS OVERCOME BY THE MORE POTENT PRESUMPTION OF DEATH. THE EXISTENCE OF ANY MOTIVE FOR THE DISAPPEARANCE AND FAILURE TO COMMUNICATE USUALLY IS SUFFICIENT TO PREVENT THE PRESUMPTION FROM ARISING. THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT WE PROCEED ON THE BASIS THAT THE WIDOW IS OR MAY BE ALIVE. UNTIL THE FACT OF HER DEATH IS ESTABLISHED OR IS JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.

B-145563, JUL. 19, 1961

TO MRS. NORMA BEDFORD:

THIS REFERS TO A LETTER DATED MARCH 27, 1961, WRITTEN IN YOUR BEHALF BY MR. PHILLIP M. WHITE, JR., ATTORNEY AT LAW, REGARDING THE ARREARS OF PAY AND DEATH GRATUITY DUE IN THE CASE OF YOUR BROTHER, LAUREL MANELY GOVER, WHO DIED MARCH 12, 1945, WHILE SERVING AS A BOATSWAIN'S MATE FIRST CLASS IN THE UNITED STATES NAVY.

IN HIS LETTER MR. WHITE REFERS TO A PREVIOUS CLAIM ASSERTED IN YOUR BEHALF BY LETTER DATED JANUARY 18, 1949, FROM THE ST. LOUIS COUNTY VETERANS SERVICE OFFICE, DULUTH, MINNESOTA, WHICH CLAIM WAS DENIED BY LETTER DATED APRIL 18, 1949, FROM OUR OFFICE FOR THE REASON THAT THE RECORDS INDICATED THE DECEASED SERVICEMAN WAS SURVIVED BY A WIDOW, MRS. ESTELLE M. GOVER, WHO CAME AHEAD OF MRS. BEDFORD IN THE ORDER OF PRECEDENCE ESTABLISHED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, GOVERNING THE SETTLEMENT OF DECEDENTS' ACCOUNTS. MR. WHITE SAYS THAT SINCE THE WIDOW HAS NOT BEEN HEARD FROM SINCE 1946, IT MUST BE PRESUMED THAT SHE IS DEAD, THE SEVEN-YEAR COMMON LAW PRESUMPTION OF DEATH PREVAILING, THEREBY MAKING YOU LEGALLY ENTITLED TO THE AMOUNTS INVOLVED.

THE GENERAL RULE IS THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME, THE PRESUMPTION, IN THE ABSENCE OF PROOF TO THE CONTRARY, IS THAT HE IS STILL ALIVE UNTIL SUCH PRESUMPTION IS OVERCOME BY THE MORE POTENT PRESUMPTION OF DEATH. UNITED STATES V. WILDCAT, 244 U.S. 111; WHITE V. METROPOLITAN LIFE INS. CO., 100 P.2D 691. ALSO, A MERE UNEXPLAINED ABSENCE DOES NOT CREATE A PRESUMPTION OF DEATH (BUTLER V. MUTUAL LIFE INS. CO. OF NEW YORK, 225 N.Y. 197, 121 N.E. 758); AND THE EXISTENCE OF ANY MOTIVE FOR THE DISAPPEARANCE AND FAILURE TO COMMUNICATE USUALLY IS SUFFICIENT TO PREVENT THE PRESUMPTION FROM ARISING. RE TALBOT, 250 MASS. 517, 146 N.E. 1; AND NOTE, 64 A.L.R. 1288. CONSEQUENTLY, IN CASES OF THIS NATURE ARISING UNDER THE FEDERAL STATUTES, THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT WE PROCEED ON THE BASIS THAT THE WIDOW IS OR MAY BE ALIVE, UNTIL THE FACT OF HER DEATH IS ESTABLISHED OR IS JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.

IT MAY ALSO BE STATED THAT, EXCEPT FOR THE CLAIM ASSERTED ON YOUR BEHALF IN 1949, NO CLAIM WAS PRESENTED TO OUR OFFICE BY YOU OR ON YOUR BEHALF WITHIN A PERIOD OF 10 YEARS AFTER THE DEATH OF YOUR LATE BROTHER. IF, AT THE TIME OF FILING THE 1949 CLAIM, THERE WAS A WIDOW SURVIVING WHO HAS SINCE DIED, THE FILING OF SUCH CLAIM IN 1949 WOULD BE WITHOUT EFFECT SINCE AT THAT TIME YOU WOULD HAVE HAD NO RIGHT TO THE AMOUNT DUE, A WIDOW TAKING PRECEDENCE OVER A SISTER IN THE SETTLEMENT OF DECEDENTS' ACCOUNTS. HENCE, UNLESS IT SHOULD BE ESTABLISHED THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW AT THE TIME THE 1949 CLAIM WAS PRESENTED, YOUR CLAIM IS NOW BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH, WITH CERTAIN EXCEPTIONS, BARS CLAIMS AGAINST THE UNITED STATES UNLESS SUCH CLAIMS ARE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED. B-136723, SEPTEMBER 11, 1958.

THEREFORE, ON THE PRESENT RECORD SETTLEMENT MAY NOT ISSUE IN YOUR FAVOR FOR THE AMOUNTS INVOLVED.