B-147796, JANUARY 3, 1962, 41 COMP. GEN. 431

B-147796: Jan 3, 1962

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THE DESIGNATION IS INEFFECTIVE BY OPERATION OF LAW UPON THE DEATH OF THE NAMED BENEFICIARY AND NO RIGHTS TO COMPENSATION WHICH WOULD LATER BECOME DUE UPON THE DEATH OF THE EMPLOYEE VESTED IN THE BENEFICIARY OR HER HEIRS OR ESTATE. THE SURVIVING WIFE RATHER THAN THE CHILDREN OF THE DECEASED DESIGNATED BENEFICIARY IS ENTITLED TO THE UNPAID COMPENSATION PURSUANT TO SECTION 1 OF THE ACT OF AUGUST 3. IN THE EVENT THE AMOUNT PAID BY THE STATE IS LESS THAN THE AMOUNT WITHHELD. WHOSE NAME IS TO BE ENTERED ON THE VOUCHER. IS ALLOWABLE. THAT SHE WAS SURVIVED BY TWO DAUGHTERS WHO ALSO HAVE SURVIVED MR. PREDECEASED HIM AND WAS NOT "SURVIVING" ON THE DATE OF HIS DEATH. OUR VIEW IS THAT SUCH DESIGNATION OF JANUARY 26.

B-147796, JANUARY 3, 1962, 41 COMP. GEN. 431

DECEDENTS' ESTATES - COMPENSATION - BENEFICIARY DEATH - COURTS - JURORS GOVERNMENT EMPLOYEES IN STATE COURTS - UNCOLLECTED FEES AT TIME OF DEATH WHEN THE DESIGNATED BENEFICIARY (WIFE) TO RECEIVE UNPAID COMPENSATION DUE AT THE TIME OF DEATH OF AN EMPLOYEE DIES BEFORE THE EMPLOYEE, THE DESIGNATION IS INEFFECTIVE BY OPERATION OF LAW UPON THE DEATH OF THE NAMED BENEFICIARY AND NO RIGHTS TO COMPENSATION WHICH WOULD LATER BECOME DUE UPON THE DEATH OF THE EMPLOYEE VESTED IN THE BENEFICIARY OR HER HEIRS OR ESTATE; THEREFORE, EVEN THOUGH THE EMPLOYEE DOES NOT CANCEL OR CHANGE THE BENEFICIARY DESIGNATION UPON HIS SUBSEQUENT MARRIAGE, UPON HIS DEATH, THE SURVIVING WIFE RATHER THAN THE CHILDREN OF THE DECEASED DESIGNATED BENEFICIARY IS ENTITLED TO THE UNPAID COMPENSATION PURSUANT TO SECTION 1 OF THE ACT OF AUGUST 3, 1950, 5 U.S.C. 61F, WHICH SPECIFIES THE ORDER OF PRECEDENCE IN THE SETTLEMENT OF ACCOUNTS OF DECEASED OFFICERS AND EMPLOYEES. IN THE SETTLEMENT OF UNPAID COMPENSATION DUE A DECEASED GOVERNMENT EMPLOYEE WHO HAD RENDERED JURY SERVICE IN A STATE COURT WHILE ON COURT LEAVE GRANTED PURSUANT TO THE ACT OF JUNE 29, 1940, 5 U.S.C. 30N AND 30P, AND WHO HAD NOT RECEIVED THE FEES PRESCRIBED BY STATE LAW FOR 2 DAYS OF SUCH SERVICE, THERE SHOULD BE WITHHELD PURSUANT TO 5 U.S.C. 30P, WHICH PROVIDES FOR DEDUCTION OF JURY FEES FROM THE COMPENSATION PAYABLE TO THE EMPLOYEE FOR THE PERIOD OF JURY SERVICE, AN AMOUNT EQUAL TO THE 2 DAYS' JURY FEES, WHICH REPRESENTS AN ITEM WHICH MAY YET BE RECEIVABLE UNDER STATE LAW BY THE REPRESENTATIVE OF THE EMPLOYEE'S ESTATE, AND IN THE EVENT THE AMOUNT PAID BY THE STATE IS LESS THAN THE AMOUNT WITHHELD, ADJUSTMENT MAY BE ALLOWED ADMINISTRATIVELY UPON PRESENTATION OF A SUPPLEMENTAL CLAIM.

TO MYLDRED N. JONES, DEPARTMENT OF THE INTERIOR, JANUARY 3, 1962:

YOUR LETTER OF DECEMBER 12, 1961, REQUESTS OUR DECISION UPON TWO QUESTIONS, STATED BELOW, CONCERNING CERTIFICATION OF THE ENCLOSED VOUCHER ( STANDARD FORM NO. 1154) FOR $2,868.02 REPRESENTING UNPAID COMPENSATION DUE FREDERICK A. KNAPP ON THE DATE OF HIS DEATH, NOVEMBER 11, 1961, AS AN EMPLOYEE OF THE BUREAU OF MINES.

YOUR FIRST QUESTION CONCERNS THE PROPER PAYEE, WHOSE NAME IS TO BE ENTERED ON THE VOUCHER, AND TO WHOM THE COMPENSATION DUE AT TIME OF DEATH WOULD BE PAYABLE UNDER THE PROVISIONS OF THE ACT OF AUGUST 3, 1950, 64 STAT. 395, 5 U.S.C. 61F, 61G. YOU ASK WHETHER THE SUBMITTED CLAIM ( STANDARD FORM NO. 1153) OF MRS. PHYLLIS H. KNAPP, SURVIVING WIFE OF MR. KNAPP, IS ALLOWABLE. YOUR DOUBT ARISES BECAUSE OF THE DESIGNATION OF BENEFICIARY FORM ( STANDARD FORM NO. 1152) WHICH MR. KNAPP FURNISHED THE BUREAU IN 1951 NAMING MARY M. KNAPP, SPOUSE, AS HIS BENEFICIARY UNDER THE ABOVE 1950 ACT. YOU SAY, HOWEVER, THAT MARY M. KNAPP DIED IN 1953, BUT THAT SHE WAS SURVIVED BY TWO DAUGHTERS WHO ALSO HAVE SURVIVED MR. KNAPP, AND THAT HE DID NOT CANCEL THE "EXISTING" DESIGNATION OF 1951.

SECTION 1 OF THE ACT OF AUGUST 3, 1950, 5 U.S.C. 61F, PROVIDES IN PERTINENT PART THAT ALL UNPAID COMPENSATION DUE A DECEASED EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE "PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH" IN THE ORDER OF PRECEDENCE DESCRIBED IN THAT SECTION. THIS CASE, MARY M. KNAPP, WHOM THE EMPLOYEE NAMED IN 1951, PREDECEASED HIM AND WAS NOT "SURVIVING" ON THE DATE OF HIS DEATH. OUR VIEW IS THAT SUCH DESIGNATION OF JANUARY 26, 1951, BECAME INEFFECTIVE BY OPERATION OF LAW UPON HER DEATH. NO RIGHTS HAD VESTED IN HER, OR IN HER HEIRS OR ESTATE, REGARDING PAYMENT OF COMPENSATION WHICH WOULD LATER BECOME DUE ONLY UPON HIS DEATH. ALTHOUGH THE TWO DAUGHTERS MENTIONED BY YOU WERE PERSONS SURVIVING ON THE DATE OF DEATH WITHIN THE PURVIEW OF SECTION 1 OF THE ACT, THEREUNDER "IF THERE BE NO SUCH BENEFICIARY" THE ORDER OF PRECEDENCE PROVIDES THE WIDOW OF THE EMPLOYEE SHALL BE PAID ALL UNPAID COMPENSATION DUE ON THE DATE OF HIS DEATH, IN THIS CASE, MRS. PHYLLIS H. KNAPP.

HOWEVER, AS TO THE SPECIFIC AMOUNT PAYABLE TO HER YOU RAISE A FURTHER QUESTION, CONCERNING COURT LEAVE GRANTED MR. KNAPP ON APRIL 3 AND 4, 1961, WHEN HE SERVED UNDER SUMMONS DATED MARCH 13, 1961, AS PETIT JUROR UNDER THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, STATE OF UTAH. THE FEDERAL LAW APPLICABLE HERE IS THE ACT OF JUNE 29, 1940, PUBLIC LAW 676, 76TH CONG., 54 STAT. 689, 5 U.S.C. 30N AND 30P.

SO FAR AS PERTINENT TO THIS QUESTION SECTION 1 OF THE 1940 ACT, 5 U.S.C. 30N, PROVIDES THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES WHILE PERFORMING JURY SERVICE IN ANY STATE COURT SHALL NOT BE DIMINISHED BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3 OF THAT ACT, 5 U.S.C. 30P, AND THAT SUCH PERIOD OF JURY SERVICE SHALL NOT BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW. SECTION 3, 5 U.S.C. 30P, PROVIDES "ANY AMOUNTS WHICH SUCH EMPLOYEE MAY RECEIVE FROM SUCH STATE ON ACCOUNT OF SUCH JURY SERVICE" SHALL BE CREDITED AGAINST THE COMPENSATION PAYABLE BY THE UNITED STATES TO THE EMPLOYEE FOR THE PERIOD HE WAS ABSENT ON ACCOUNT OF SUCH JURY IN A STATE COURT.

ON NOVEMBER 14, 1961, THE CLERK OF SALT LAKE COUNTY CERTIFIED THAT MR. KNAPP SERVED THE JURY DUTY IN QUESTION ON APRIL 3 AND 4, 1961, BUT THAT BECAUSE OF HIS DEATH "NO PAYMENT FOR JURY SERVICE WILL BE MADE FOR THE AMOUNT DUE HIM.' THE SPECIFIC DAILY FEE OR SUM INVOLVED IS NOT STATED BY THE CLERK. HOWEVER, WE ARE NOT AWARE OF A PROVISION IN THE UTAH LAWS WHICH WOULD CLOTHE SUCH A STATEMENT BY THE COUNTY CLERK WITH FORCE AND EFFECT AS A DECISION ADJUDICATING THE WHOLE MATTER ACCORDING TO APPLICABLE UTAH LAW.

TITLES 21 AND 78 OF THE UTAH CODE, ANNOTATED, 1953, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

21-5-1. FEES OF GRAND AND TRIAL JURORS.--- GRAND JURORS AND TRIAL JURORS IN THE DISTRICT COURT SHALL RECEIVE $4 PER DAY FOR EACH DAY'S ATTENDANCE, AND 20 CENTS PER MILE, ONE WAY, FOR THE DISTANCE NECESSARILY TRAVELED IN ATTENDING COURT. * * *

21-7-18. LIMIT ON TIME FOR PRESENTATION OF CERTIFICATE.--- ANY HOLDER OF A WITNESS'S OR JUROR'S CERTIFICATE SPECIFIED IN THIS TITLE SHALL BE REQUIRED TO PRESENT IT TO THE COUNTY TREASURER OR TO THE COUNTY AUDITOR, AS THE CASE MAY BE, OF THE COUNTY WHERE SUCH CERTIFICATE WAS ISSUED WITHIN ONE YEAR FROM THE DATE OF ITS ISSUANCE. IF THE SAME SHALL NOT BE PRESENTED FOR PAYMENT WITHIN THAT TIME, IT SHALL BE INVALID AND SHALL NOT BE PAID.

78-12-37. EFFECT OF DEATH.--- IF A PERSON ENTITLED TO BRING AN ACTION DIES BEFORE THE EXPIRATION OF THE TIME LIMITED FOR THE COMMENCEMENT THEREOF, AND THE CAUSE OF ACTION SURVIVES, AN ACTION MAY BE COMMENCED BY HIS REPRESENTATIVES AFTER THE EXPIRATION OF THAT TIME AND WITHIN ONE YEAR FROM HIS DEATH. * * *

78-46-5. TRIAL JURY--- NUMBER AND FEES OF JURORS.--- * * * THE FEES OF JURORS SHALL BE AT THE RATE OF $8.00 PER DAY FOR EACH DAY JURORS ARE OBLIGED TO ATTEND IN THE DISTRICT COURT * * *.

REGARDING THE $3 DAILY FEE YOU MENTION AT THE END OF YOUR LETTER, WE FIND THAT THE UTAH LAWS OF 1949, CH. 59, SECTION 1, AMENDED THE 1933 LAW INCREASING THE DISTRICT COURT JURY FEE FROM $3 TO $8. LIKEWISE, THE 1933 PROVISION, CODIFIED IN THE ABOVE SECTION 21-5-1, FOR A FEE OF $4 (PLUS MILEAGE FOR TRAVEL NECESSARY IN ATTENDING THE DISTRICT COURT) SEEMS TO HAVE BEEN SUPERSEDED BY THE 1949 PROVISION, SECTION 78-46-5 QUOTED ABOVE. UNDER SECTIONS 21-7-18 AND 78-12-37, IT APPEARS THAT THE FEES APPARENTLY STILL DUE MR. KNAPP IMMEDIATELY PRIOR TO HIS DEATH MAY YET BE COLLECTIBLE BY THE REPRESENTATIVE OF HIS ESTATE.

THEREFORE, IN ORDER THAT THE INTERESTS OF THE UNITED STATES BE PROTECTED, THERE SHOULD BE DEDUCTED FROM THE AMOUNT ON THE SUBMITTED VOUCHER A SUM OF $16 REPRESENTING 2 DAYS' FEES UNDER SECTION 78-46-5, WHICH ARE DEEMED BY US TO BE YET RECEIVABLE IN BEHALF OF MR. KNAPP'S JURY SERVICE ON APRIL 3 AND 4, 1961. IN THE EVENT MR. KNAPP OR SOMEONE ELSE SHOULD COLLECT FROM THE PROPER UTAH AUTHORITY ( STATE OR COUNTY) A FEE LESS THAN THE $8 PER DAY WITHHELD ON THIS VOUCHER, THE DIFFERENCE PROPERLY WOULD BE ALLOWABLE ADMINISTRATIVELY UPON PRESENTATION OF SUPPLEMENTAL CLAIM THEREFOR.

IF OTHERWISE CORRECT, THE VOUCHER WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT TO MRS. PHYLLIS H. KNAPP IN THE NET AMOUNT OF $2,852.02.