B-156054, MAR. 26, 1965

B-156054: Mar 26, 1965

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ALBERTA PERDUE: FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 18. IT APPEARS THAT YOU WERE BROUGHT TO TRIAL BECAUSE OF HIS DEATH AND IN LETTER DATED OCTOBER 29. HEMLOCK REPORTED THAT YOU WERE GIVEN A SUSPENDED SENTENCE AND PLACED ON 2 YEARS' PROBATION BY THE EASTERN DISTRICT FEDERAL COURT. HEMLOCK REQUESTS A REVIEW OF YOUR CLAIM WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED NOVEMBER 17. IT WAS HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT THE PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY. IT WAS POINTED OUT THAT. THE COURTS HAVE CONSISTENTLY HELD THAT WHERE A BENEFICIARY OF LIFE INSURANCE INTENTIONALLY AND FELONIOUSLY CAUSES THE DEATH OF THE INSURED. IN VIEW THEREOF AND SINCE THE RECORD INDICATES THAT YOU WERE FOUND GUILTY IN YOUR TRIAL INCIDENT TO THE DEATH OF YOUR HUSBAND.

B-156054, MAR. 26, 1965

TO MRS. ALBERTA PERDUE:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 18, 1965, FROM MR. ALFRED J. HEMLOCK, ENCLOSING A POWER OF ATTORNEY SIGNED BY YOU AUTHORIZING HIM TO REPRESENT YOU IN CONNECTION WITH YOUR CLAIM FOR THE 6 MONTHS' DEATH GRATUITY AND THE PAY AND ALLOWANCES DUE IN THE CASE OF YOUR LATE HUSBAND, SAMMIE L. PERDUE, SR., RA 14 212 399, USA, WHO DIED OCTOBER 14, 1963.

THE RECORDS SHOW THAT YOUR HUSBAND'S DEATH RESULTED FROM A KNIFE WOUND INFLICTED BY YOU. IT APPEARS THAT YOU WERE BROUGHT TO TRIAL BECAUSE OF HIS DEATH AND IN LETTER DATED OCTOBER 29, 1964, MR. HEMLOCK REPORTED THAT YOU WERE GIVEN A SUSPENDED SENTENCE AND PLACED ON 2 YEARS' PROBATION BY THE EASTERN DISTRICT FEDERAL COURT, KINGS COUNTY, NEW YORK. IN HIS LETTER OF JANUARY 18, 1965, MR. HEMLOCK REQUESTS A REVIEW OF YOUR CLAIM WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED NOVEMBER 17, 1964.

IN OUR DECISION DATED AUGUST 27, 1954, B-119863, 34 COMP. GEN. 103, COPY ENCLOSED, IT WAS HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT THE PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY, COMPENSATION OR OTHER BENEFITS TO AN HEIR OR BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENT BECOMES DUE, EVEN THOUGH SUCH HEIR OR BENEFICIARY MAY BE FOUND NOT GUILTY BY A TRIAL JURY IN CRIMINAL PROCEEDINGS GROWING OUT OF THE HOMICIDE. SEE UNITED STATES V. KWASNIEWSKI, 91 F.SUPP. 847. IT WAS POINTED OUT THAT, IN LINE WITH THE GENERAL PRINCIPAL OF LAW THAT A PERSON MAY NOT PROFIT FROM HIS OWN WRONGFUL ACT, THE COURTS HAVE CONSISTENTLY HELD THAT WHERE A BENEFICIARY OF LIFE INSURANCE INTENTIONALLY AND FELONIOUSLY CAUSES THE DEATH OF THE INSURED, THERE CAN BE NO RECOVERY ON THE POLICY BY SUCH BENEFICIARY. SEE SWAVELY V. PRUDENTIAL INSURANCE COMPANY OF AMERICA, 157 A. 394, AND CASES THERE CITED; NEW YORK MUTUAL LIFE INSURANCE COMPANY V. ARMSTRONG, ADMINISTRATRIX, 117 U.S. 591.

IN VIEW THEREOF AND SINCE THE RECORD INDICATES THAT YOU WERE FOUND GUILTY IN YOUR TRIAL INCIDENT TO THE DEATH OF YOUR HUSBAND, THERE IS NO AUTHORITY ON THE RECORD BEFORE US FOR THE PAYMENT TO YOU OF THE 6 MONTHS' DEATH GRATUITY AND THE PAY AND ALLOWANCES DUE HIM AT THE DATE OF HIS DEATH. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 17, 1964, DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

UNDER THE PROVISIONS OF 10 U.S.C. 1477 LISTING THE ORDER OF PRECEDENCE OF ELIGIBLE SURVIVORS TO BE PAID THE 6 MONTHS' DEATH GRATUITY ON ACCOUNT OF THE DEATH OF A MEMBER ON ACTIVE DUTY, THE SURVIVING SPOUSE OF A DECEASED MEMBER HEADS THE LIST FOLLOWED BY HIS CHILDREN. UNDER THE PROVISIONS OF 10 U.S.C. 2771 LISTING THE ORDER OF PRECEDENCE OF PERSONS ENTITLED TO BE PAID THE AMOUNTS DUE FROM THE ARMED FORCE OF WHICH THE DECEDENT WAS A MEMBER, THE DESIGNATED BENEFICIARY HEADS THE LIST FOLLOWED BY THE SURVIVING SPOUSE AND THEN THE CHILDREN. IN YOUR CASE, SINCE THE RECORD INDICATES THAT AS WIDOW AND DESIGNATED BENEFICIARY YOU CANNOT QUALIFY FOR THE 6 MONTHS' DEATH GRATUITY OR THE PAY AND ALLOWANCES DUE YOUR HUSBAND AT THE DATE OF HIS DEATH, CONSIDERATION WILL BE GIVEN TO A CLAIM ON BEHALF OF DECEDENT'S CHILDREN FOR SUCH AMOUNTS IF PRESENTED TO THIS OFFICE BY THEIR DULY APPOINTED LEGAL GUARDIAN. SUCH A CLAIM SHOULD BE ACCOMPANIED BY AN AUTHENTICATED COPY OF THE LETTERS GUARDIANSHIP EVIDENCING THE APPOINTMENT, AND A CERTIFICATE FROM THE CLERK OF THE COURT SHOWING THE CHARGE ON WHICH YOU WERE TRIED AND THE DISPOSITION OF YOUR TRIAL INCIDENT TO THE DEATH OF YOUR HUSBAND. THE RECORD SHOWS THAT THERE IS APPROXIMATELY $1,830 DUE AS THE 6 MONTHS' DEATH GRATUITY AND $213 DUE AS PAY AND ALLOWANCES, LESS AUTHORIZED DEDUCTIONS.