B-152701, OCTOBER 29, 1963, 43 COMP. GEN. 429

B-152701, OCTOBER 29, 1963, 43 COMP. GEN. 429

DECEDENTS' ESTATES - SIMULTANEOUS DEATHS - PAYMENT OF AMOUNTS DUE IN DETERMINING THE DISPOSITION OF THE LUMP-SUM PAYMENT DUE FOR ANNUAL LEAVE UPON THE ACCIDENTAL SIMULTANEOUS DEATH OF A FORMER EMPLOYEE AND HIS WIFE WHERE THEIR TWO SONS SURVIVED THE ACCIDENT FOR A SHORT TIME, IT IS APPROPRIATE TO CONSTRUE THE ORDER OF PRECEDENCE IN THE FEDERAL STATUTE (5 U.S.C. 61F) THROUGH THE AID OF THE UNIFORM SIMULTANEOUS DEATH ACT, FOR ALTHOUGH THE FEDERAL LAW PROVIDES AN ORDER OF PAYMENT THERE IS NO FEDERAL STATUTE TO ASSIST IN DETERMINING WHETHER THE PARTIES NAMED IN THE FEDERAL STATUTE EXIST AND, THEREFORE, FOR THE PURPOSE OF DETERMINING THE EXISTENCE OF THE PARTIES NAMED IN THAT ACT THE APPLICABLE STATE LAW MUST BE CONSULTED, AND ON THE BASIS OF EVIDENCE THAT BOTH SONS LIVED AFTER THE ACCIDENT FOR AT LEAST A SHORT PERIOD TO TIME, THE STATE UNIFORM SIMULTANEOUS DEATH ACT MAY NOT BE INVOKED, AND THE LUMP-SUM ANNUAL LEAVE IS FOR PAYMENT TO THE ESTATES OF THE TWO SONS AND NOT TO THE MOTHER OF THE DECEASED EMPLOYEE.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, OCTOBER 29, 1963:

ON OCTOBER 14, 1963, YOU REQUESTED OUR DECISION CONCERNING THE DISPOSITION OF THE AMOUNT DUE AS LUMP-SUM PAYMENT FOR ANNUAL LEAVE UPON THE DEATH OF MR. HORACE A. HART A FORMER EMPLOYEE OF THE FEDERAL AVIATION AGENCY.

MR. HART, HIS WIFE MABEL WATERS HART AND THEIR TWO SONS WILLIAM AND JAMES DIED AS THE RESULT OF AN AUTOMOBILE ACCIDENT ON SEPTEMBER 21, 1962. THE EVIDENCE GATHERED BY YOUR AGENCY FROM PERSONS WHO HAD PERSONAL KNOWLEDGE OF THE ACCIDENT AND FROM THE OFFICIAL STATE, COUNTY AND CITY RECORDS CONTAINS NO INDICATION THAT THE DEATHS OF MR. AND MRS. HART AT THE TIME OF THE ACCIDENT WERE OTHER THAN SIMULTANEOUS. ON THE OTHER HAND, THE EVIDENCE INDICATES THAT BOTH SONS SURVIVED THE ACCIDENT FOR PERIODS OF FROM 15 TO 90 MINUTES. EVIDENCE TO ESTABLISH THE EXACT TIME EACH SON DIED IS CONFLICTING AND NOT CONCLUSIVE, HOWEVER, THERE APPEARS TO BE NO DOUBT THAT BOTH SONS DID SURVIVE FOR AT LEAST A SHORT PERIOD OF TIME.

THE MOTHER OF MR. HART CLAIMED AND WAS PAID THE AMOUNT DUE FOR UNUSED ANNUAL LEAVE UNDER THE ACT OF AUGUST 3, 1950, CH. 518, 64 STAT. 395, AS AMENDED, 5 U.S.C. 61F-K; HOWEVER, THE ATTORNEY FOR THE ADMINISTRATOR OF THE ESTATES OF THE HART FAMILY QUESTIONED THAT PAYMENT ON BEHALF OF THE ESTATE OF ONE, OR THE ESTATES OF BOTH SONS, BECAUSE THE CHILDREN OF A DECEASED EMPLOYEE PRECEDE THE EMPLOYEE'S PARENTS IN THE ORDER OF SUCCESSION ESTABLISHED BY THAT ACT.

YOU ASK THE FOLLOWING QUESTIONS CONCERNING THE DISPOSAL OF THE MONEY IN QUESTION:

1. IT IS APPROPRIATE TO CONSTRUE THE ORDER OF PRECEDENCE IN THE FEDERAL STATUTE (5 U.S.C. 61F) THROUGH THE AID OF THE UNIFORM SIMULTANEOUS DEATH ACT?

2. IF THE ANSWER TO THE PRECEDING QUESTION IS YES, DOES THE AVAILABLE INFORMATION CONSTITUTE ,SUFFICIENT EVIDENCE THAT THE (PARENTS AND CHILDREN) DIED OTHERWISE THAN SIMULTANEOUSLY... ? "

3. IF THE ANSWER TO QUESTION 1 IS YES, WAS PAYMENT PROPER TO MR. HART'S MOTHER ON THE BASIS OF THE ORDER OF PREFERENCE?

ALTHOUGH THE FEDERAL LAW PROVIDES AN ORDER OF PAYMENT FOR THE MONEY IN QUESTION THERE IS NO FEDERAL STATUTE WHICH CAN ASSIST IN DETERMINING WHETHER THE PARTIES NAMED IN THE FEDERAL STATUTE EXIST. THEREFORE, FOR THE PURPOSE OF DETERMINING THE EXISTENCE OF PARTIES NAMED IN THAT ACT THE APPLICABLE STATE LAW MUST BE CONSULTED. SEE DESYLVA V. BALLENTINE, 351 U.S. 570, 580 (1956). YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

ARTICLE 35, SECTION 83 OF THE ANNOTATED CODE OF MARYLAND, 1957--- THE UNIFORM SIMULTANEOUS DEATH ACT--- PROVIDES:

SECTION 83. NO SUFFICIENT EVIDENCE OF SURVIVORSHIP.

WHERE THE TITLE TO PROPERTY OR THE DEVOLUTION THEREOF DEPENDS UPON PRIORITY OF DEATH AND THERE IS NO SUFFICIENT EVIDENCE THAT THE PERSONS HAVE DIED OTHERWISE THAN SIMULTANEOUSLY, THE PROPERTY OF EACH PERSON SHALL BE DISPOSED OF AS IF HE HAD SURVIVED * * *

ALTHOUGH NO CASES DECIDED UNDER THE MARYLAND STATUTE HAVE BEEN FOUND IT IS UNIFORMLY HELD THAT THE PRESUMPTION AUTHORIZED BY THE UNIFORM SIMULTANEOUS DEATH ACT MAY NOT BE INVOKED IF THERE IS DIRECT EVIDENCE OF THE SURVIVAL OF ONE OF THE PARTIES INVOLVED. THAT RULE IS APPLIED REGARDLESS OF THE LENGTH OF TIME THE SURVIVING PARTY LIVES AND REGARDLESS OF THE CONDITION OF THE SURVIVING PARTY PRIOR TO DEATH. SAUERS V. STOLZ, 218 P.2D 741 (COLO., 1950); IN RE DAVENPORT'S ESTATES, 323 P.2D 611 (IDA., 1958); SMITH V. SMITH, 317 S.W.2D 275 (ARK., 1958); PRUDENTIAL INS. CO. OF AMERICA V. SUTTON, 368 S.W.2D 522 (MO., 1963).

THERE APPEARS TO BE NO EVIDENCE THAT EITHER MR. OR MRS. HART LIVED AFTER THE ACCIDENT FOR AT LEAST A SHORT SPACE OF TIME. THEREFORE, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

IN VIEW OF THE ANSWER TO QUESTIONS ONE AND TWO THE ACT OF AUGUST 3, 1950, REQUIRES THAT THE AMOUNT DUE AS LUMP-SUM PAYMENT FOR ANNUAL LEAVE BE PAID TO THE ESTATES OF THE TWO SONS. THEREFORE, PAYMENT OF THAT AMOUNT TO THE EMPLOYEE'S MOTHER AS IF THE SONS HAD NOT SURVIVED WAS IMPROPER. YOUR THIRD QUESTION IS ANSWERED IN THE NEGATIVE.