B-142054, APR. 27, 1960

B-142054, APR. 27, 1960

TO MR. HOLLIS E. MATHIS: THE SIX MONTHS' DEATH GRATUITY DUE IN THE CASE OF COLEY ROBERT BAIRD, 454 99 74, WHO DIED ON JANUARY 31, 1959, WHILE SERVING AS ELECTRONICS TECHNICIAN, THIRD CLASS, UNITED STATES NAVY.

THE PAYMENT OF PAY AND ALLOWANCES DUE IN THE CASES OF DECEASED MEMBERS OF THE ARMED FORCES WHO DIE AFTER DECEMBER 31, 1955, IS GOVERNED BY 10 U.S.C. 2771. THAT SECTION PROVIDES (SO FAR AS APPLICABLE HERE) THAT AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH THE DECEDENT WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST IN THE ORDER OF PRECEDENCE, LIVING ON THE DATE OF SUCH DECEDENT'S DEATH, AS FOLLOWS: (1) BENEFICIARY DESIGNATED BY THE DECEDENT IN WRITING, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE DEPARTMENT CONCERNED; (2) SURVIVING SPOUSE; (3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION; AND (4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER BE DEAD, THE SURVIVOR.

THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS GOVERNED BY 10 U.S.C. 1477. THAT SECTION (SO FAR AS APPLICABLE HERE) PROVIDES THAT SUCH GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST: (1) SURVIVING SPOUSE; (2) CHILDREN (INCLUDING STEPCHILDREN WHO WERE A PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH), IN EQUAL SHARES; AND (3) CERTAIN PERSONS (INCLUDING HIS PARENTS), IF DESIGNATED BY HIM. THE SECTION FURTHER PROVIDES THAT IF AN ELIGIBLE SURVIVOR DIES BEFORE HE RECEIVES THE DEATH GRATUITY, IT SHALL BE PAID TO THE LIVING SURVIVOR NEXT IN THE ORDER PRESCRIBED.

THE RECORDS SHOW THAT COLEY ROBERT BAIRD DESIGNATED HIS WIFE, RETA SUE BAIRD, AS BENEFICIARY FOR ALL UNPAID PAY AND ALLOWANCES. THE RECORDS ALSO SHOW THAT HE DESIGNATED HIS PARENTS, MR. AND MRS. COLEY L. BAIRD, AS BENEFICIARIES FOR THE SIX MONTHS' DEATH GRATUITY IN THE EVENT HE HAD NO SURVIVING SPOUSE OR ELIGIBLE CHILDREN.

IN SUPPORT OF YOUR CLAIM THERE HAS BEEN FURNISHED A CERTIFIED COPY OF "ORDER DETERMINING HEIRSHIP," DATED JANUARY 28, 1960, IN THE MATTER OF THE ESTATES OF COLEY ROBERT BAIRD AND RETA SUE MATHISBAIRD, DECEASED, ISSUED BY THE PROBATE COURT OF DONA ANA COUNTY, NEW MEXICO. THE COURT THERE DETERMINED THAT RETA SUE MATHIS BAIRD DIED SHORTLY AFTER COLEY ROBERT BAIRD AND THAT SHE LEFT SURVIVING HER AS HER SOLE AND ONLY HEIRS DEBRA LYNN HAMIL AND ROBERT DALE HAMIL, AGES 5 AND 3, WHO ARE ENTITLED TO HER ENTIRE ESTATE. ALSO, IT IS THERE SHOWN THAT YOU ARE ADMINISTRATOR OF THE ESTATES. SINCE RETA SUE BAIRD SURVIVED COLEY ROBERT BAIRD, THE AMOUNT DUE HIM AS PAY AND ALLOWANCES AT THE DATE OF HIS DEATH VESTED IN HER, UNDER THE PROVISIONS OF 10 U.S.C. 2771, AS HIS SURVIVING SPOUSE. ACCORDINGLY, A SETTLEMENT WILL BE STATED ALLOWING SUCH AMOUNT TO YOU AS ADMINISTRATOR OF HER ESTATE.

WITH RESPECT TO THE SIX MONTHS' DEATH GRATUITY, THERE HAS BEEN NOTED YOUR CONTENTION THAT DEBRA LYNN HAMIL AND ROBERT DALE HAMIL, CHILDREN OF RETA SUE BAIRD BY HER FORMER MARRIAGE, WERE A PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH. THE DECEDENT'S MOTHER CONTENDS, HOWEVER, THAT RETA SUE BAIRD DESERTED COLEY ROBERT BAIRD ON JANUARY 3, 1959, LEAVING THE HOME THAT HE HAD PROVIDED FOR HER AND HER CHILDREN, AND THAT SHE TOOK THE CHILDREN AND RETURNED TO YOUR HOME IN WHITE SANDS, NEW MEXICO. IN VIEW OF SUCH CONFLICTING CLAIMS AND SINCE THERE IS INSUFFICIENT EVIDENCE IN OUR FILE TO MAKE A DETERMINATION AS TO THE PERSONS ENTITLED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, WE WILL WITHHOLD SETTLEMENT WITH RESPECT TO SUCH GRATUITY UNTIL SUCH TIME AS A COURT OF COMPETENT JURISDICTION DETERMINES WHETHER OR NOT THE CHILDREN OF RETA SUE BAIRD WERE A PART OF THE HOUSEHOLD OF COLEY ROBERT BAIRD AT THE TIME OF HIS DEATH. IF EVIDENCE CAN BE FURNISHED SHOWING THAT A COURT OF COMPETENT JURISDICTION HAS DETERMINED THAT SUCH MINOR CHILDREN WERE A PART OF THE HOUSEHOLD OF COLEY ROBERT BAIRD AT THE TIME OF HIS DEATH, A CLAIM FOR THE SIX MONTHS' DEATH GRATUITY SUBMITTED BY A DULY APPOINTED AND QUALIFIED GUARDIAN OF THE ESTATE OF SUCH MINOR CHILDREN WILL BE GIVEN CONSIDERATION BY OUR OFFICE.