B-101489, JAN. 10, 1964

B-101489, JAN. 10, 1964

TO MRS. LOUISE VAN NORDEN:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 25, 1963, WRITTEN ON YOUR BEHALF BY MRS. FANNIE HUSID, CLAIMS CONSULTANT FOR THE NEW YORK CITY DIVISION OF VETERANS' AFFAIRS, AND FORWARDED HERE BY THE U.S. NAVY FINANCE CENTER, CONCERNING YOUR CLAIM FOR THE PAY DUE THE ESTATE OF YOUR LATE SON, FREDERICK ETHELBERT VAN NORDEN, 2237317, FM2C, UNITED STATES NAVY, AS OF JANUARY 15, 1946, THE DATE ESTABLISHED AS THE PRESUMPTIVE DATE OF HIS DEATH FOR PAY PURPOSES.

MRS. HUSID MAKES REFERENCE IN HER LETTER TO OUR DECISION OF APRIL 16, 1951, TO YOU, IN WHICH WE ADVISED YOU THAT, UNDER CERTAIN CONDITIONS, ANY MONEY DUE THE ESTATE OF YOUR LATE SON, IN THE ABSENCE OF A CLAIM FROM THE FATHER, MIGHT BE ALLOWED TO A DULY APPOINTED LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE, THAT IS, AN ADMINISTRATOR OR EXECUTOR. MRS. HUSID STATES THAT YOU RECEIVED THIS DECISION BUT DID NOTHING ABOUT IT UNTIL NOW WHEN YOU CALLED AT HER OFFICE FOR HELP IN THE MATTER, AND SHE ASKS FOR A STATEMENT FROM OUR OFFICE THAT THE MONEY IS STILL BEING HELD BEFORE SHE ADVISES YOU TO BE APPOINTED ADMINISTRATOR, AND WHETHER YOU WOULD STILL BE ELIGIBLE TO COLLECT IT FOR THE ESTATE AS EXPLAINED TO YOU IN OUR DECISION OF APRIL 16, 1951.

BY SETTLEMENTS OF THIS OFFICE DATED APRIL 30 AND SEPTEMBER 16, 1946, YOU WERE ALLOWED THE SUMS OF $1,164.83 AND $87.20, RESPECTIVELY, REPRESENTING ONE-HALF OF THE AMOUNT DUE YOUR LATE SON'S ESTATE. LIKE AMOUNTS WERE RESERVED PENDING APPLICATION THEREFOR BY THE FATHER OF YOUR LATE SON. A LETTER RECEIVED HERE FEBRUARY 2, 1951, YOU ALLEGED THAT YOUR HUSBAND HAD LEFT YOU AND YOUR SON ON DECEMBER 29, 1937, AND HAS NOT BEEN HEARD FROM SINCE THAT DATE. THEREAFTER, BY OUR DECISION OF APRIL 16, 1951, B-101489, YOU WERE ADVISED THAT THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, REPEALED ALL PRIOR LAWS IN CONNECTION WITH THE DISTRIBUTION OF AMOUNTS DUE DECEASED PERSONS OF THE NAVY AND PROVIDED THAT WHERE THE DECEASED PERSON IS NOT SURVIVED BY A WIDOW OR DESCENDANTS AND NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, SUCH AS AN EXECUTOR OR ADMINISTRATOR APPOINTED BY A COURT OF COMPETENT JURISDICTION, THE AMOUNT FOUND DUE MAY BE ALLOWED "TO THE FATHER AND MOTHER IN EQUAL PARTS," WHERE BOTH SURVIVE. YOU WERE PAID YOUR SHARE, BUT THERE IS NO PROVISION OF LAW FOR ALLOWING THE SURVIVING FATHER'S SHARE TO THE MOTHER ON THE GROUND OF ABANDONMENT. THEREFORE, YOU WERE ADVISED THAT, IN THE ABSENCE OF A CLAIM FROM THE FATHER, OR A SHOWING THAT HE IS DEAD, THE BALANCE WITHHELD FOR HIM COULD BE PAID ONLY TO A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THAT IS, AN ADMINISTRATOR OR EXECUTOR.

WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE, THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, 237, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. SINCE YOUR SON DIED IN 1946 ANY CLAIM NOW RECEIVED FROM THE FATHER OR A LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE WOULD BE BARRED FROM OUR CONSIDERATION BY THAT ACT. ALSO, UNLESS YOU PRESENT EVIDENCE THAT YOUR HUSBAND DIED PRIOR TO FEBRUARY 2, 1951, THE DATE WE RECEIVED YOUR LETTER CLAIMING THE BALANCE OF YOUR SON'S ESTATE RESERVED FOR HIS FATHER, YOUR CLAIM MUST ALSO BE CONSIDERED AS BARRED UNDER THE ABOVE MENTIONED ACT OF OCTOBER 9, 1940. THE MERE UNEXPLAINED ABSENCE OF A PERSON, REGARDLESS OF THE LENGTH OF HIS ABSENCE, IS NOT SUFFICIENT TO OVERCOME THE PRESUMPTION THAT HE IS STILL LIVING UNLESS SO DETERMINED BY A COURT.

WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, WE MUST COMPLY WITH THE APPLICABLE FEDERAL STATUES IN SETTLING ACCOUNTS OF DECEASED PERSONNEL. CONSEQUENTLY, UNLESS EVIDENCE IS FURNISHED THAT YOUR LATE SON'S FATHER DIED PRIOR TO FEBRUARY 2, 1951, THERE IS NO PROPER BASIS UPON WHICH ANY CLAIM FOR THE BALANCE DUE YOUR SON'S ESTATE MAY RECEIVE FAVORABLE CONSIDERATION BY OUR OFFICE.