B-150361, FEB. 7, 1963

B-150361: Feb 7, 1963

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LILIA BARUCH AGUSTIN: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10. AT THE TIME OF HIS DEATH THE RECORDS OF THE DEPARTMENT OF THE ARMY SHOWED THAT THE DECEASED WAS UNMARRIED AND THAT HIS NEXT OF KIN WAS HIS MOTHER. WHOSE ADDRESS IS 29 IRVING AVENUE. SHE WAS PAID THE REMAINING SUM OF $2. WITH ADVICE THAT INFORMATION HAD BEEN RECEIVED FROM THE VETERANS ADMINISTRATION INDICATING THAT THE SERVICEMAN HAD BEEN MARRIED AND WAS SURVIVED BY A CHILD. BARUCH WAS INFORMED OF THIS CIRCUMSTANCE AND SHE WAS ADVISED IN SUBSTANCE THAT SINCE A SURVIVING DAUGHTER WOULD BE A PREFERRED HEIR UNDER THE LAW ON THE BASIS OF RELATIONSHIP. WE COULD NOT GIVE FAVORABLE CONSIDERATION TO HER CLAIM UNLESS IT WAS PRESENTED AS THE DULY APPOINTED LEGAL REPRESENTATIVE OF HER SON'S ESTATE.

B-150361, FEB. 7, 1963

TO MRS. LILIA BARUCH AGUSTIN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1962, CONCERNING YOUR CLAIM, AS DAUGHTER, FOR AMOUNTS DUE IN THE CASE OF THE LATE BENJAMIN BARUCH, WHO DIED WHILE ON ACTIVE DUTY AS A MEMBER OF THE REGULAR ARMY.

AT THE TIME OF HIS DEATH THE RECORDS OF THE DEPARTMENT OF THE ARMY SHOWED THAT THE DECEASED WAS UNMARRIED AND THAT HIS NEXT OF KIN WAS HIS MOTHER, MRS. RAY BARUCH. IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF DECEMBER 7, 1944, 58 STAT. 795, OUR OFFICE ALLOWED THE MOTHER $1,000 BY SETTLEMENT DATED OCTOBER 26, 1945, AND ADVISED HER THAT SETTLEMENT FOR THE BALANCE DUE DECEDENT COULD NOT ISSUE UNTIL A LEGALLY APPOINTED REPRESENTATIVE OF THE DECEDENT'S ESTATE FILED A CLAIM THEREFOR. MRS. BARUCH, WHOSE ADDRESS IS 29 IRVING AVENUE, ATLANTIC CITY, NEW JERSEY, U.S.A., SECURED LETTERS OF ADMINISTRATION FROM THE ATLANTIC COUNTY SURROGATE'S COURT, ATLANTIC COUNTY, NEW JERSEY, ON NOVEMBER 25, 1946, AND BY SETTLEMENT DATED JANUARY 14, 1947, SHE WAS PAID THE REMAINING SUM OF $2,712.91 THEN REPORTED TO BE DUE AS ADMINISTRATRIX OF THE ESTATE OF BENJAMIN BARUCH.

ON JUNE 6, 1962, THE DEPARTMENT OF THE ARMY FORWARDED THE CLAIM OF MRS. RAY BARUCH FOR AN ADDITIONAL AMOUNT OF $573.69 DUE THE DECEDENT AS SOLDIERS' DEPOSITS AND INTEREST THEREON, WITH ADVICE THAT INFORMATION HAD BEEN RECEIVED FROM THE VETERANS ADMINISTRATION INDICATING THAT THE SERVICEMAN HAD BEEN MARRIED AND WAS SURVIVED BY A CHILD. MRS. BARUCH WAS INFORMED OF THIS CIRCUMSTANCE AND SHE WAS ADVISED IN SUBSTANCE THAT SINCE A SURVIVING DAUGHTER WOULD BE A PREFERRED HEIR UNDER THE LAW ON THE BASIS OF RELATIONSHIP, WE COULD NOT GIVE FAVORABLE CONSIDERATION TO HER CLAIM UNLESS IT WAS PRESENTED AS THE DULY APPOINTED LEGAL REPRESENTATIVE OF HER SON'S ESTATE.

BY SETTLEMENT OF AUGUST 23, 1962, YOU WERE ADVISED IN EFFECT THAT IN VIEW OF THE PROBATE PROCEEDINGS IN THE CASE AND DOUBT AS TO WHETHER YOU WERE ENTITLED UNDER THE FEDERAL STATUTE OF DISTRIBUTION AND UNDER THE ORDER OF DISTRIBUTION IN THOSE PROCEEDINGS, THE AMOUNT DUE THE ESTATE WOULD BE ALLOWED ONLY UPON RECEIPT OF A CLAIM FROM THE LEGAL REPRESENTATIVE.

WITH RESPECT TO THE SETTLEMENT ACTION, THE MENTIONED INFORMATION RECEIVED FROM THE VETERANS ADMINISTRATION IS BASED ENTIRELY UPON CERTAIN AFFIDAVITS EXECUTED LONG AFTER THE TIME WHEN THE DECEDENT IS ALLEGED TO HAVE MARRIED YOUR MOTHER. AS AGAINST THESE AFFIDAVITS THE OFFICIAL RECORDS OF DEPARTMENT OF THE ARMY SHOW THAT THROUGHOUT THE PERIOD FROM THE MEMBER'S ENLISTMENT ON DECEMBER 1936, TO THE DATE OF HIS DEATH, HE HAD SHOWN HIS MARITAL STATUS AS SINGLE AND HIS NEXT OF KIN AS HIS MOTHER, MRS. RAY BARUCH. ALSO, IT IS REPORTED BY THE ARMY THAT A SEARCH OF THE FILES OF THE CHAPLAINS WHO WERE STATIONED AT FORT STOTSENBURG FROM 1938 TO 1941, INCLUDING THE FILE OF CHAPLAIN CHRISTIAN A. WACHTER, ALLEGED IN ONE OF THE AFFIDAVITS TO BE THE CLERGYMAN WHO PERFORMED THE MARRIAGE CEREMONY, HAD FAILED TO LOCATE ANY RECORD OF A MARRIAGE BETWEEN BENJAMIN BARUCH AND YOUR MOTHER OR OF YOUR BAPTISM. IN ADDITION TO THIS REPORT THE FILE CONTAINS A COPY OF A CERTIFICATE BY THE OFFICE OF THE LOCAL CIVIL REGISTRAR, PAMPANGA, MUNICIPALITY OF ANGELES, REPUBLIC OF THE PHILIPPINES, THAT THERE IS NO RECORD IN THEIR REGISTER OF MARRIAGES FOR 1938 OF A MARRIAGE BETWEEN THE DECEDENT AND YOUR MOTHER, NOR IS THERE ANY RECORD IN THE REGISTER OF BIRTHS OF 1941 OF YOUR BIRTH. ACCORDINGLY, THE RECORD MAY NOT BE ACCEPTED AS ESTABLISHING THAT YOU ARE THE DAUGHTER OF THE DECEASED FOR PURPOSES OF THE ACT OF JUNE 30, 1906, AS AMENDED.

IN CASES SUCH AS THIS INVOLVING CONFLICTING CLAIMS AND DOUBT AS TO THE PROPER DISTRIBUTEE, THE ACCOUNTING OFFICERS HAVE TAKEN THE POSITION THAT THE PROTECTION OF THE INTEREST OF THE GOVERNMENT AND THE PARTIES CONCERNED REQUIRES THAT SETTLEMENT BE WITHHELD UNTIL A CLAIM IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. IN THAT WAY, THE ADMINISTRATOR OR EXECUTOR CAN GIVE THE GOVERNMENT A GOOD ACQUITTANCE AND DISTRIBUTE THE AMOUNT DUE TO THE PROPER PERSONS UNDER THE SUPERVISION OF THE COURT, WHERE THE FACTS MAY BE JUDICIALLY ASCERTAINED AND ANY DISPUTES SETTLED. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291, AND CHARLES V. UNITED STATES, 19 CT.CL. 316, 319.

SINCE IT APPEARS THAT MRS. RAY BARUCH, WHO WAS APPOINTED ADMINISTRATRIX OF THE ESTATE NOVEMBER 25, 1946, HAS BEEN DISCHARGED, THE AMOUNT DUE MAY NOT BE ALLOWED TO HER UNLESS THE FORMER PROBATE PROCEEDINGS ARE REOPENED AND SHE PRESENTS A CLAIM AS THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE. AS OF THIS DATE MRS. BARUCH HAS NOT PRESENTED A CLAIM IN THAT CAPACITY. SHOULD SUCH A CLAIM BE RECEIVED, HOWEVER, WE WOULD HAVE NO CHOICE BUT TO ALLOW HER THE AMOUNT DUE IN HER REPRESENTATIVE CAPACITY AND YOUR RIGHTS IN THE MATTER THEN WOULD BE FOR DETERMINATION BY THE PROBATE COURT.

MRS. BARUCH IS BEING FURNISHED A COPY OF THIS DECISION FOR HER INFORMATION.