B-166927, JUL. 25, 1969

B-166927, JUL. 25, 1969

MILITARY - SIX MONTHS' DEATH GRATUITY - LEGAL GUARDIAN APPOINTMENT DECISION ON BEHALF OF NATURAL GUARDIAN OF MINOR SON FOR 6 MONTHS' DEATH GRATUITY DUE INCIDENT TO DEATH OF CLAIMANT'S FORMER HUSBAND ON SEPTEMBER 22, 1959. ADVICE IS GIVEN THAT CLAIM FOR PURPOSES OF TOLLING THE BARRED ACT WILL BE REGARDED AS HAVING BEEN PRESENTED BY CUSTODIAN OF MINOR. IF ATTORNEY IS AUTHORIZED BY COURT TO RECEIVE AMOUNT DUE ON BEHALF OF MINOR PAYMENT WILL BE MADE.

TO MRS. BARBARA ANN LONG:

REFERENCE IS MADE TO LETTER OF JUNE 30, 1969, WRITTEN IN YOUR BEHALF BY ROBERT A. FUGAZI, ATTORNEY AT LAW, RELATIVE TO YOUR CLAIM AS NATURAL GUARDIAN OF YOUR MINOR SON, TIMOTHY R. YORK, FOR 6 MONTHS' DEATH GRATUITY DUE IN THE CASE OF YOUR FORMER HUSBAND, COMMANDER THOMAS H. YORK, U.S. NAVY, WHO DIED ON SEPTEMBER 22, 1959, WHILE ON ACTIVE DUTY.

IN OUR DECISION TO YOU OF JUNE 18, 1968, B-166927, WE MENTIONED THAT BY LETTER OF MAY 5, 1960, OUR CLAIMS DIVISION ADVISED YOU THAT IN THE ABSENCE OF A CLAIM BY YOU OR SOME OTHER PERSON AS LEGAL GUARDIAN OF THE ESTATE OF TIMOTHY R. YORK, UNDER AN APPOINTMENT BY A COURT HAVING JURISDICTION OVER THE MINOR, THE AMOUNT DUE WILL BE HELD IN ESCROW UNTIL YOUR SON REACHES HIS MAJORITY, AT WHICH TIME HE MAY FILE A CLAIM FOR IT. WE ALSO ADVISED YOU THAT THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, PROVIDES THAT CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THIS OFFICE THAT ARE NOT FILED HERE WITHIN 10 YEARS AFTER THE CLAIM FIRST ACCRUED SHALL BE FOREVER BARRED, AND THAT IN COMMANDER YORK'S CASE THE 10-YEAR PERIOD WILL EXPIRE ON SEPTEMBER 22, 1969. WE THEREFORE SUGGESTED PROMPT ACTION WITH RESPECT TO PRESENTATION OF A CLAIM BY A DULY APPOINTED LEGAL GUARDIAN WITHIN THE 10-YEAR PERIOD SO AS TO AVOID ANY QUESTION OF THE CLAIM BEING BARRED. YOUR ATTORNEY REQUESTS AN EXPLANATION OF THOSE STATEMENTS.

AS STATED IN THE DECISION, IN THE CASE OF COMMANDER YORK, A 10-YEAR PERIOD FROM THE DATE OF HIS DEATH WILL EXPIRE ON SEPTEMBER 22, 1969. THESE CIRCUMSTANCES, WE DEEMED IT APPROPRIATE TO ADVISE YOU OF THE 1940 ACT AND SUGGESTED PROMPT ACTION WITH RESPECT TO THE PRESENTATION OF A CLAIM BY A DULY APPOINTED LEGAL GUARDIAN OF YOUR SON IN ORDER TO AVOID ANY QUESTION OF THE APPLICABILITY OF SUCH ACT.

IT MAY BE STATED, HOWEVER, THAT IN SOMEWHAT SIMILAR CASES, WE HAVE VIEWED THE PRESENTATION OF A CLAIM TO THIS OFFICE BY THE CUSTODIAN OF A MINOR AS TOLLING THE RUNNING OF THE BARRING ACT WITH RESPECT TO THE MINOR EVEN THOUGH THE CUSTODIAN DID NOT ESTABLISH ENTITLEMENT TO RECEIVE THE AMOUNT DUE ON BEHALF OF THE MINOR. IN LINE WITH THAT VIEW, WE ARE OF THE OPINION THAT THE BARRING ACT WILL NOT BE APPLICABLE TO ANY CLAIM THAT YOUR SON MAY PRESENT TO THIS OFFICE FOR THE DEATH GRATUITY AFTER HE BECOMES OF LEGAL AGE.

YOUR ATTORNEY FURTHER ASKS WHETHER WE WOULD CONSIDER PAYMENT PURSUANT TO A COURT ORDER IF YOU FILED A PETITION UNDER THE PROVISIONS OF SECTION 1430.5 OF THE CALIFORNIA PROBATE CODE, SINCE THIS WOULD INVOLVE FEWER COSTS THAN IF YOU WERE APPOINTED LEGAL GUARDIAN.

SECTION 1430.5 OF THE CALIFORNIA PROBATE CODE PROVIDES THAT IF A MINOR HAS NO GUARDIAN OF HIS ESTATE AND IF THE MONEY BELONGING TO THE MINOR EXCEEDS $2,000 BUT NOT $10,000, IF THE FATHER IS DEAD AND THE MOTHER HAS THE CARE OR CUSTODY OF SUCH MINOR,"* * * THEN HIS MOTHER, OR THE PERSON HOLDING SUCH MONEY BELONGING TO SUCH MINOR, MAY FILE A VERIFIED PETITION IN THE SUPERIOR COURT OF THE COUNTY WHERE THE MINOR RESIDES REQUESTING SUCH COURT TO TAKE JURISDICTION OVER THE DISPOSITION OF SUCH MONEY, AND THE COURT MAY ORDER THAT SUCH MONEY BE DEPOSITED IN A BANK OR BANKS, OR A TRUST COMPANY OR COMPANIES, OR INVESTED IN AN ACCOUNT OR ACCOUNTS IN AN INSURED SAVINGS AND LOAN ASSOCIATION OR ASSOCIATIONS, SUBJECT TO WITHDRAWAL ONLY UPON ORDER OF THE COURT, OR IT MAY REQUIRE A GUARDIAN OF THE ESTATE TO BE APPOINTED AND THE MONEY PAID TO SUCH GUARDIAN, OR PRESCRIBE SUCH OTHER CONDITIONS AS THE COURT IN ITS DISCRETION DEEMS TO BE IN THE BEST INTERESTS OF THE MINOR.'

WHILE WE WERE AWARE OF THAT PROVISION OF CALIFORNIA LAW WHEN WE WROTE TO YOU ON JUNE 18, 1969, WE DID NOT CONSIDER IT APPLICABLE TO YOUR CLAIM FOR THE REASON THAT YOU ARE NOT "HOLDING" THE MONEY HERE INVOLVED. IF, HOWEVER, YOU PETITION THE COURT HAVING JURISDICTION OVER THE MINOR UNDER THE PROVISIONS OF SECTION 1430.5 OF THE CALIFORNIA PROBATE CODE AND OBTAIN A COURT ORDER AS CUSTODIAN OF TIMOTHY R. YORK, AUTHORIZING YOU TO RECEIVE THE AMOUNT DUE FOR DISPOSITION AS DIRECTED IN THE COURT ORDER, WE WILL GIVE PROMPT CONSIDERATION TO ALLOWING THE AMOUNT DUE PURSUANT TO THE COURT ORDER IF A CERTIFIED COPY OF THE ORDER IS FILED HERE.