B-147328, NOV. 8, 1961

B-147328, NOV. 8, 1961

TO MR. HAROLD S. THURGOOD, DEPARTMENT OF PUBLIC WELFARE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1961, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF JULY 20, 1961, WHICH DISALLOWED YOUR CLAIM AS ADMINISTRATOR OF THE ESTATE OF LESLIE E. COOK, LATE RADIOMAN THIRD CLASS, UNITED STATES COAST GUARD, FOR THE PAY AND ALLOWANCES DUE HIM AS OF JUNE 13, 1960, THE DATE OF HIS DEATH.

INFORMATION WITH YOUR CLAIM SHOWS THAT THE DECEDENT WAS AN ILLEGITIMATE CHILD, THAT THE FATHER DESERTED PRIOR TO HIS BIRTH, AND THAT THE MOTHER WAS A PUBLIC WELFARE RECIPIENT FOR MANY YEARS, MARRIED MANY TIMES, AND FINALLY ABANDONED THE DECEDENT IN 1953, AT WHICH TIME HE BECAME A WARD OF THE STATE OF UTAH THROUGH JUDICIAL PROCEEDINGS. IN VIEW OF THE FACT THAT THE WHEREABOUTS OF THE PARENTS ARE UNKNOWN, AND SINCE THE DECEDENT WAS UNMARRIED, HAD NO CHILDREN, DESIGNATED NO BENEFICIARY, AND HAS BEEN A WARD OF THE WELFARE DEPARTMENT, YOU REQUEST THAT PAYMENT OF THE PAY AND ALLOWANCES DUE BE MADE TO YOU AS LEGAL REPRESENTATIVE OF HIS ESTATE.

THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES WHO DIE AFTER DECEMBER 31, 1955, IS GOVERNED BY 10 U.S.C. 2771, WHICH PROVIDES FOR PAYMENT OF THE AMOUNTS DUE DECEASED MEMBERS AT THE DATE OF DEATH TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

"/1) BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AN AMOUNT, IF THE DESIGNATION IS RECEIVED, BEFORE THE DECEASED MEMBER'S DEATH, AT THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED.

"/2) SURVIVING SPOUSE.

"/3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

"/4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER IS DEAD, THE SURVIVOR.

"/5) LEGAL REPRESENTATIVE.

"/6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER.'

SINCE THE RECORD SHOWS THAT THE DECEDENT LEFT NO SURVIVING SPOUSE OR DESCENDANTS AND FAILED TO DESIGNATE A BENEFICIARY TO RECEIVE UNPAID PAY AND ALLOWANCES IN THE EVENT OF HIS DEATH, SUCH PAY AND ALLOWANCES AS WERE FOUND TO BE DUE ARE PAYABLE TO HIS SURVIVING PARENTS OR PARENT, TO THE EXTENT THAT THEY OTHERWISE COULD QUALIFY AS HIS LEGAL HEIRS, BASED ON THEIR NATURAL RELATIONSHIP AND UNAFFECTED BY QUESTIONS OF SUPPORT OR CUSTODY, TO THE EXCLUSION OF THE CLAIM OF AN ADMINISTRATOR OR OTHER LEGAL REPRESENTATIVE. WHILE WE ARE IN SYMPATHY WITH THE VIEWS EXPRESSED IN YOUR LETTER, THE QUOTED STATUTORY PROVISIONS ARE MANDATORY AND BINDING UPON THIS OFFICE AS TO THE DISTRIBUTION OF UNPAID COMPENSATION OF DECEASED MILITARY PERSONNEL. FURTHERMORE, IT HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT PAYMENT OF AMOUNTS DUE FROM THE UNITED STATES WILL NOT BE MADE TO THE ADMINISTRATOR OF AN ESTATE WHEN THERE ARE NO OTHER ASSETS REQUIRING ADMINISTRATION AND THE CIRCUMSTANCES ARE SUCH THAT THE SOLE RESULT OF THE PAYMENT WOULD BE AN ESCHEAT TO THE STATE. COMP. DEC. 95; 11 COMP. GEN. 104; 17 COMP. GEN. 49. CONSEQUENTLY, EVEN IN THE EVENT OF FAILURE OF A VALID CLAIM FROM SURVIVING PARENT OR PARENTS, YOUR CLAIM COULD NOT BE RECOGNIZED IN THE ABSENCE OF EVIDENCE THAT THE AMOUNT ALLOWED WOULD NOT SUBSEQUENTLY ESCHEAT TO THE STATE OF UTAH. YOU ARE ADVISED, THEREFORE, THAT IN THE ABSENCE OF EVIDENCE ESTABLISHING (1) EITHER THE DEATH OF THE PARENTS OR THEIR DISQUALIFICATION AS POSSIBLE HEIRS AND (2) THAT THE AMOUNT DUE WILL NOT ESCHEAT TO THE STATE, OR THAT OTHER ASSETS OF THE ESTATE REQUIRED ADMINISTRATION, WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF JULY 20, 1961, MUST BE SUSTAINED.