B-156411, APR. 6, 1965

B-156411: Apr 6, 1965

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IS THE SOLE HEIR OF EARNEST GRACE. ASKS OUR ADVICE WHETHER FURTHER STEPS ARE REQUIRED TO COLLECT FOR THE BENEFIT OF THE MINOR CHILD THE UNPAID COMPENSATION DUE THE DECEDENT. YOU WERE INFORMED THAT THE RECORDS OF OUR OFFICE SHOWED THAT THE DECEDENT WAS MARRIED TO ONE ETHEL CARTER ON DECEMBER 14. OUT OF THEIR MARRIAGE THERE WAS BORN A DAUGHTER. WITH WHOM THE ALLEGED WIDOW WAS RESIDING. IT DOES NOT APPEAR FROM THE COPY OF JUDGMENT FORWARDED WITH YOUR LETTER THAT ETHEL CARTER (GRACE) WAS SERVED WITH NOTICE OF THE PROCEEDING OTHER THAN BY PUBLICATION AS PROVIDED IN SECTION 50 OF THE PROBATE CODE. LATER ESTABLISH THAT SHE WAS THE LAWFUL WIDOW OF THE DECEDENT. WE NOTE THAT THE JUDGMENT RECITES THAT THE EVIDENCE WHICH LED THE COURT TO ITS CONCLUSION IS A MATTER OF RECORD.

B-156411, APR. 6, 1965

TO MR. MICHAEL K. CRAWFORD, MANDELL AND WRIGHT, ATTORNEYS AND COUNSELORS:

YOUR LETTER OF FEBRUARY 26, 1965, ENCLOSING A COPY OF THE JUDGMENT OF THE PROBATE COURT OF HARRIS COUNTY, TEXAS, FINDING THAT CAROLYN GRACE, MINOR, IS THE SOLE HEIR OF EARNEST GRACE, DECEASED, ASKS OUR ADVICE WHETHER FURTHER STEPS ARE REQUIRED TO COLLECT FOR THE BENEFIT OF THE MINOR CHILD THE UNPAID COMPENSATION DUE THE DECEDENT.

OUR PRIMARY CONCERN IN PAYING AMOUNTS DUE UNDER THE ACT OF AUGUST 3, 1950, 64 STAT. 395, AS AMENDED, 5 U.S.C. 61F, ET SEQ., NECESSARILY MUST BE THAT THE UNITED STATES OBTAINS A VALID ACQUITTANCE BY THE PAYMENT MADE. IN THE CASE OF ASHTON V. ASHTON, 117 A.2D 459, THE COURT RULED THAT WHEN AN EMPLOYEE OF THE GOVERNMENT DIES HAVING DUE UNPAID COMPENSATION UNDER 5 U.S.C. 61F, AND LEAVES SURVIVING A LAWFUL WIDOW, THE UNPAID COMPENSATION DOES NOT BECOME AN ASSET OF THE DECEDENT'S ESTATE BUT BELONGS, UNDER THE STATUTE, TO HIS WIDOW. IN VIEW OF THAT DECISION THERE NECESSARILY ARISES A QUESTION CONCERNING THE JURISDICTION OF THE PROBATE COURT OVER THE SUBJECT MATTER OF THE PROCEEDING UNDER SECTION 48 OF THE PROBATE CODE OF TEXAS. ALSO, SEE FENNELL V. UNITED STATES, 67 F.2D 768, AND MAREK V. FLEMMING, 192 F.SUPP. 528.

IN OUR CLAIMS DIVISION LETTER OF SEPTEMBER 24, 1962, TO MR. ARTHUR J. MANDELL OF YOUR FIRM, YOU WERE INFORMED THAT THE RECORDS OF OUR OFFICE SHOWED THAT THE DECEDENT WAS MARRIED TO ONE ETHEL CARTER ON DECEMBER 14, 1938, IN THE PARISH OF CONCORDIA, LOUISIANA. COMMUNICATIONS FROM ETHEL CARTER GRACE AND FROM THE DECEDENT'S FATHER, ROBERT GRACE, SHOW THAT ETHEL CARTER GRACE SURVIVED EARNEST GRACE. OUT OF THEIR MARRIAGE THERE WAS BORN A DAUGHTER, AS LEAN ALMA GRACE, ON OCTOBER 28, 1939, WITH WHOM THE ALLEGED WIDOW WAS RESIDING, ACCORDING TO OUR LAST ADDRESS OF RECORD, AT 327 EAST 99TH STREET, LOS ANGELES 2, CALIFORNIA.

IT DOES NOT APPEAR FROM THE COPY OF JUDGMENT FORWARDED WITH YOUR LETTER THAT ETHEL CARTER (GRACE) WAS SERVED WITH NOTICE OF THE PROCEEDING OTHER THAN BY PUBLICATION AS PROVIDED IN SECTION 50 OF THE PROBATE CODE. THUS, SHOULD SHE OR HER DAUGHTER THROUGH HER, LATER ESTABLISH THAT SHE WAS THE LAWFUL WIDOW OF THE DECEDENT, WE APPARENTLY WOULD BE WITHOUT A DEFENSE, EVEN OF ESTOPPEL, AGAINST A CLAIM FOR DUPLICATE PAYMENT.

HOWEVER, WE NOTE THAT THE JUDGMENT RECITES THAT THE EVIDENCE WHICH LED THE COURT TO ITS CONCLUSION IS A MATTER OF RECORD. IF ANY OF THE EVIDENCE SO INTRODUCED TENDS TO NEGATE THE VALIDITY OF THE CLAIM OF ETHEL CARTER GRACE OR INDICATES A RELINQUISHMENT OF CLAIM BY HER, A TRANSCRIPT OF SUCH RECORDS WILL BE CONSIDERED. ALSO, IN THAT EVENT, THE NAME AND ADDRESS OF THE LEGAL OR NATURAL GUARDIAN OF THE MINOR SHOULD BE FURNISHED, IT APPEARING THAT THE UNPAID COMPENSATION IS IN EXCESS OF THE AMOUNT WHICH MAY BE PAID BY DEBTORS ON BEHALF OF MINORS TO THE COUNTY CLERK. SEE SECTION 144 OF PROBATE CODE.