B-123216, DEC. 13, 1955

B-123216, DEC. 13, 1955

TO MR. AND MRS. WILBUR D. CAMPBELL:

REFERENCE IS MADE TO LETTERS OF AUGUST 23, AUGUST 26 AND SEPTEMBER 22, 1955, WRITTEN IN YOUR BEHALF BY MR. VINCENT P. DESMOND, ATTORNEY AT LAW, CONCERNING OUR SETTLEMENTS DATED AUGUST 1, 1955, WHICH ALLOWED YOU THE SUM OF $24,710.46, AS RETIRED PAY DUE THE ESTATE OF SHERMAN L. ZEA, CAPTAIN, UNITED STATES MARINE CORPS, RETIRED, IN THE CAPACITY OF EXECUTORS OF THE DECEASED OFFICER'S WILL, AND ADVISED THAT NO AMOUNT MAY BE ALLOWED FOR ANY PERIOD PRIOR TO JULY 14, 1944, AS IT WAS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. THERE HAS ALSO BEEN RECEIVED A LETTER DATED NOVEMBER 29, 1955, WRITTEN BY MR. PAUL C. VAN DYKE, ATTORNEY AT LAW, ACTING IN BEHALF OF MRS. IRIS V. ZEA, WIDOW OF THE DECEASED OFFICER, ENCLOSING A BRIEF SUBMITTED OVER HIS SIGNATURE AND THAT OF MR. DESMOND, SETTING FORTH THEIR JOINT POSITION FOR REQUESTING REVIEW OF THOSE SETTLEMENTS.

THE RECORD SHOWS THAT CAPTAIN ZEA RETIRED FROM THE MARINE CORPS ON OCTOBER 1, 1937, ON THE BASIS OF HIS APPLICATION UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 28, 1931, 46 STAT. 1440, AND THAT HE DIED ON JUNE 18, 1954. HIS NAME WAS BORNE ON THE RETIRED LIST OF OFFICERS OF THE MARINE CORPS TO THE DATE OF HIS DEATH. HOWEVER, HE WAS NEVER PAID ANY RETIRED PAY BECAUSE HE FAILED TO KEEP THE MARINE CORPS ADVISED OF HIS WHEREABOUTS. IT ALSO APPEARS THAT HE DESERTED HIS WIFE FOLLOWING HIS RETIREMENT FROM THE MARINE CORPS. BY LETTER DATED OCTOBER 24, 1944, MRS. IRIS V. ZEA MADE INQUIRY WHETHER SHE COULD RECEIVE ANY OF HER HUSBAND'S RETIRED PAY ON THE BASIS THAT HE SHOULD BE PRESUMED TO BE DEAD, HAVING DISAPPEARED FOR A PERIOD OF SEVEN YEARS. SHE WAS ADVISED BY OUR CLAIMS DIVISION BY LETTER DATED JANUARY 23, 1945, THAT IN THE ABSENCE OF CONCLUSIVE EVIDENCE OF DEATH OR A DECLARATION OF HER HUSBAND'S DEATH BY A COURT OF COMPETENT JURISDICTION NO ACTION COULD BE TAKEN BY US ON A CLAIM FROM HER FOR ANY PAY WHICH MAY HAVE ACCRUED TO HIM BETWEEN THE DATE OF HIS RETIREMENT AND THE DATE HE WAS LAST KNOWN TO BE ALIVE.

IN REQUESTING REVIEW OF THE MATTER IT IS CONTENDED THAT MRS. ZEA'S INQUIRY IN 1944 HAD THE EFFECT OF TOLLING THE 10-YEAR LIMITATION FIXED BY THE ACT OF OCTOBER 9, 1940, IN BEHALF OF THE DECEASED OFFICER'S ESTATE. BY LETTER DATED JULY 13, 1954, RECEIVED HERE ON JULY 14, 1954, MR. DESMOND ADVISED THAT THE WILL OF THE DECEASED RETIRED OFFICER HAD BEEN PROBATED IN THE OFFICE OF THE REGISTER OF WILLS, DELAWARE COUNTY, PENNSYLVANIA, AND THAT YOU WERE APPOINTED EXECUTORS.

THE CITED ACT OF OCTOBER 9, 1940, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.

"SEC. 2. WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

THE QUOTED LIMITATION PRESCRIBED BY THE 1940 ACT UPON THE CONSIDERATION OF CLAIMS BY US IS NOT A MERE STATUTE OF LIMITATIONS BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC CO. V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 282. WE HAVE BEEN GRANTED NO POWERS OF DISPENSATION IN THE MATTER AND, CONSEQUENTLY, WE LEGALLY MAY MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE.

THE MARINE CORPS REFERRED CAPTAIN ZEA'S ACCOUNT TO THIS OFFICE AS THAT OF A PERSON WHOSE WHEREABOUTS WAS UNKNOWN. HOWEVER, HE WAS STILL CARRIED ON THEIR RETIRED ROLLS AND HAD HE MADE INQUIRY REGARDING HIS RETIRED PAY DURING HIS LIFETIME HE COULD HAVE BEEN PAID SUCH PAY AS WAS NOT BARRED BY THE ACT OF OCTOBER 9, 1940. SO LONG AS HE WAS LIVING AND OTHERWISE CAPABLE OF RECEIVING HIS RETIRED PAY, HE WAS THE ONLY PERSON TO WHOM THAT PAY PROPERLY COULD BE PAID. WE MAY NOT CONCLUDE FROM THE FACTS AVAILABLE TO THIS OFFICE THAT ANYONE WAS AUTHORIZED TO ACT FOR CAPTAIN ZEA PRIOR TO HIS DEATH INSOFAR AS A CLAIM FOR HIS RETIRED PAY IS CONCERNED. HIS RIGHT TO SUCH PAY IS CONSIDERED AS HAVING ACCRUED TO HIM FROM DAY TO DAY. HENCE, IMMEDIATELY PRIOR TO HIS DEATH THE ONLY CLAIM HE HAD WHICH COULD HAVE BEEN RECOGNIZED BY OUR OFFICE WAS A CLAIM FOR RETIRED PAY FOR THE 10 YEARS IMMEDIATELY PRECEDING THE DATE OF RECEIPT OF ANY SUCH CLAIM IN THE GENERAL ACCOUNTING OFFICE. HE HAD NO ENFORCEABLE CLAIM TO RETIRED PAY PRIOR TO THAT 10-YEAR PERIOD AND NO SUCH CLAIM VESTED IN HIS ESTATE UPON HIS DEATH. IN OTHER WORDS, WE SEE NO BASIS FOR CONCLUDING THAT A REPRESENTATIVE OF HIS ESTATE CLAIMING AMOUNTS DUE THAT ESTATE IS ENTITLED TO BE PAID RETIRED PAY DURING A PERIOD FOR WHICH EVEN THE DECEDENT, AT THE DATE OF HIS DEATH, COULD NOT HAVE OBTAINED SUCH PAY. HIS DEATH DID NOT INTERRUPT THE RUNNING OF THE STATUTE FOR THE FILING OF A CLAIM FOR SUCH PAY, EVEN THOUGH THERE WAS AN INTERVENING PERIOD BETWEEN HIS DEATH AND THE APPOINTMENT OF A LEGAL REPRESENTATIVE OF HIS ESTATE. SEE EXECUTORS AND ADMINISTRATORS, 24 C.J. 772, SECTION 1914, AND NOTES. WHILE CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE ARGUMENTS MADE IN THE BRIEF REFERRED- TO ABOVE, NO BASIS IS FOUND FOR MODIFYING THE SETTLEMENTS OF AUGUST 1, 1955.

ACCORDINGLY, THE ACTION TAKEN IN THOSE SETTLEMENTS IN ADVISING THAT NO AMOUNT MAY BE ALLOWED THE ESTATE OF CAPTAIN SHERMAN L. ZEA FOR ANY PERIOD PRIOR TO JULY 14, 1944, IS SUSTAINED.