B-150308, DEC. 12, 1962

B-150308: Dec 12, 1962

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YOUR CLAIM PREVIOUSLY WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT OF FEBRUARY 4. HE WAS SURVIVED BY AN ADOPTED SON. WHOSE WHEREABOUTS ARE UNKNOWN. 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 ABOVE-QUOTED STATUTE IS EXPLICIT IN ITS TERMS. THE DESIGNATION MUST HAVE BEEN FILED WITH THE EMPLOYING AGENCY. YOUR DESIGNATION AS THE MAJOR BENEFICIARY IN THE WILL OF THE DECEDENT WILL NOT SUFFICE. OR HIS ISSUE IF THE SON IS DECEASED. QUALIFY IN THE THIRD ORDER OF PRECEDENCE AND TAKE TO THE EXCLUSION OF PERSONS WHOSE RIGHTS OF ENTITLEMENT ARE PROVIDED FOR IN THE FOURTH AND FIFTH STEPS.

B-150308, DEC. 12, 1962

TO MR. JAMES V. CARMICHAEL:

YOUR CLAIM, RECEIVED HERE ON OCTOBER 29, 1962, AGAIN REQUESTS THAT YOU BE ALLOWED, AS DESIGNEE UNDER A COURT ORDER OF AUGUST 5, 1959, THE UNPAID COMPENSATION DUE DANIEL J. O-CONNELL, DECEASED, AS A FORMER EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION, WARREN, OHIO. YOUR CLAIM PREVIOUSLY WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT OF FEBRUARY 4, 1958.

THE RECORD IN THE CASE SHOWS THAT THE DECEDENT, DANIEL J. O-CONNELL, DID NOT FILE A DESIGNATION OF BENEFICIARY IN THE MANNER AND FORM PROVIDED BY THE ACT OF AUGUST 3, 1950, CH. 518, 64 STAT. 395, 5 U.S.C. 61F, AND, THAT AT THE TIME OF HIS DEATH, HE WAS SURVIVED BY AN ADOPTED SON, JOSEPH O- CONNELL, WHOSE WHEREABOUTS ARE UNKNOWN. THESE FACTS PRECLUDE PAYMENT OF THE AMOUNT CLAIMED BY YOU.

SPECIFICALLY, SECTION 1 OF THE ABOVE-CITED ACT PROVIDES IN PERTINENT PART AS FOLLOWS:

"THAT IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED CIVILIAN OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT * * * 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 TIME OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, AND SUCH PAYMENT SHALL BE A BAN TO RECOVERY BY ANY OTHER PERSON OF AMOUNTS SO PAID:

"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, AND RECEIVED BY SUCH AGENCY PRIOR TO THE OFFICER'S OR EMPLOYEE'S DEATH;

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

"THIRD, IF THERE BE NO BENEFICIARY OR SURVIVING SPOUSE, TO THE CHILD OR CHILDREN OF SUCH OFFICER OR EMPLOYEE, AND DESCENDANTS OF DECEASED CHILDREN, BY REPRESENTATION:

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF SUCH OFFICER OR EMPLOYEE, OR THE SURVIVOR OF THEM;

"FIFTH, IF THERE BE NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED OFFICER OR EMPLOYEE, OR IF THERE BE NONE, TO THE PERSON OR PERSONS DETERMINED TO BE ENTITLED THERETO UNDER THE LAWS OF THE DOMICILE OF THE DECEASED OFFICER OR EMPLOYEE.'

THE ABOVE-QUOTED STATUTE IS EXPLICIT IN ITS TERMS. IN ORDER FOR A DESIGNATED BENEFICIARY TO TAKE UNDER THE FIRST STEP, THE DESIGNATION MUST HAVE BEEN FILED WITH THE EMPLOYING AGENCY. CONSEQUENTLY, YOUR DESIGNATION AS THE MAJOR BENEFICIARY IN THE WILL OF THE DECEDENT WILL NOT SUFFICE. ALSO, THE ADOPTED SON OF THE DECEASED, OR HIS ISSUE IF THE SON IS DECEASED, QUALIFY IN THE THIRD ORDER OF PRECEDENCE AND TAKE TO THE EXCLUSION OF PERSONS WHOSE RIGHTS OF ENTITLEMENT ARE PROVIDED FOR IN THE FOURTH AND FIFTH STEPS.

IN SUMMARY, THE RIGHTS OF THE DECEDENT'S ADOPTED SON, OR HIS ISSUE--- AS SET OUT IN THE THIRD STEP OF PRIORITY--- ARE SUPERIOR TO YOUR RIGHTS AS SET OUT IN THE FIFTH STEP. ANY AMOUNTS OF COMPENSATION DUE THE DECEDENT AT THE TIME OF HIS DEATH WILL BE HELD IN ABEYANCE PENDING RECEIPT IN THIS OFFICE OF A CLAIM BY THE ADOPTED SON OR HIS ISSUE. THE ONLY WAY THAT YOUR CLAIM AS EXECUTOR CAN BE CONSIDERED IS UPON THE SUBMISSION OF CONCLUSIVE PROOF THAT THE ADOPTED SON DIED PRIOR TO THE DECEASED EMPLOYEE, LEAVING NO ISSUE.

THEREFORE, OUR ACTION OF FEBRUARY 4, 1958, IN DENYING YOUR CLAIM IS SUSTAINED.