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B-142316, APR. 6, 1960

B-142316 Apr 06, 1960
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BERNICE ANN SMITH: REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED IN OUR CLAIMS DIVISION ON FEBRUARY 24. WITH YOUR LETTER THERE WAS ENCLOSED A PHOTOSTATIC COPY OF YOUR SON'S LAST WILL IN WHICH. THE WILL ALSO PROVIDES THAT IN THE EVENT YOU PREDECEASED YOUR SON THE RESIDUE OF HIS ESTATE SHOULD GO TO HIS STEPFATHER. REFERRED TO IN THE WILL AS HIS "FATHER.'. YOU EXPRESSED THE VIEW THAT THE ASSETS OF YOUR LATE SON'S ESTATE SHOULD BE DISTRIBUTED IN ACCORDANCE WITH HIS WILL AND THAT THIS SHOULD INCLUDE ALL ARREARS OF PAY. - THE FIRST THREE ARE NOT APPLICABLE IN THIS CASE. IF EITHER IS DEAD. THERE IS NO SHOWING THAT YOUR FORMER HUSBAND WAS DECEASED ON MARCH 30. - YOU MERELY STATED THAT YOU HAVE NOT HEARD FROM HIM SINCE 1940.

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B-142316, APR. 6, 1960

TO MRS. BERNICE ANN SMITH:

REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED IN OUR CLAIMS DIVISION ON FEBRUARY 24, 1960, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE UNPAID BALANCE (ONE-HALF) OF THE ARREARS OF PAY AND ALLOWANCES DUE YOUR LATE SON, FIRST LIEUTENANT EDWARD GEORGE NEMER, U. S. AIR FORCE, AO-3 050 601, AT THE DATE OF HIS DEATH ON MARCH 30, 1959.

WITH YOUR LETTER THERE WAS ENCLOSED A PHOTOSTATIC COPY OF YOUR SON'S LAST WILL IN WHICH, AFTER MAKING CERTAIN SPECIFIC REQUESTS, HE DEVISED AND BEQUEATHED TO YOU THE RESIDUE OF HIS ESTATE. THE WILL ALSO PROVIDES THAT IN THE EVENT YOU PREDECEASED YOUR SON THE RESIDUE OF HIS ESTATE SHOULD GO TO HIS STEPFATHER, MR. STUART EDWARD SMITH, REFERRED TO IN THE WILL AS HIS "FATHER.' YOU EXPRESSED THE VIEW THAT THE ASSETS OF YOUR LATE SON'S ESTATE SHOULD BE DISTRIBUTED IN ACCORDANCE WITH HIS WILL AND THAT THIS SHOULD INCLUDE ALL ARREARS OF PAY. IN FURTHER SUPPORT OF YOUR CLAIM YOU STATED THAT YOU OBTAINED FULL CUSTODY OF YOUR SON UPON YOUR DIVORCE IN 1940 FROM HIS FATHER AND THAT YOUR FORMER HUSBAND NEVER CONTRIBUTED TO THE SUPPORT OF YOUR SON.

BY LETTER OF JANUARY 25, 1960, OUR CLAIMS DIVISION FULLY ADVISED YOU AS TO THE BASIS FOR OUR SETTLEMENT OF NOVEMBER 4, 1959, WHICH ALLOWED YOU ONE -HALF OF THE AMOUNT DUE AND RESERVED A LIKE AMOUNT FOR THE FATHER. THAT LETTER EXPLAINED THE ORDER OF PRECEDENCE OF PERSONS TO WHOM THE AMOUNT DUE MAY BE PAID AS SET FORTH IN SECTION 2771 OF TITLE 10, U.S.C., GOVERNING THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES WHO DIED AFTER DECEMBER 31, 1955. THE FOURTH CLASS IN THE ORDER OF PRECEDENCE --- THE FIRST THREE ARE NOT APPLICABLE IN THIS CASE--- PROVIDES FOR PAYMENT TO THE FATHER AND MOTHER OF THE DECEASED IN EQUAL PARTS IF LIVING ON THE DATE OF HIS DEATH OR, IF EITHER IS DEAD, TO THE SURVIVOR. THERE IS NO SHOWING THAT YOUR FORMER HUSBAND WAS DECEASED ON MARCH 30, 1959--- YOU MERELY STATED THAT YOU HAVE NOT HEARD FROM HIM SINCE 1940. UNDER THE LAW, UNLESS IT BE ESTABLISHED THAT YOUR FORMER HUSBAND WAS NOT STILL LIVING ON THE DATE OF YOUR SON'S DEATH, YOU ARE ENTITLED TO PARTICIPATE IN THE DISTRIBUTION OF THE ARREARS OF PAY AND ALLOWANCES DUE IN THIS CASE ONLY TO THE EXTENT OF ONE-HALF OF THE AMOUNT DUE. THEREFORE, ON THE BASIS OF THE PRESENT RECORD, AND FOR THE REASONS SET FORTH IN THE LETTER OF JANUARY 25, 1960, WE MAY NOT AUTHORIZE PAYMENT TO YOU OF THE UNPAID BALANCE. THE FACT THAT YOUR LATE SON NAMED YOU AND YOUR PRESENT HUSBAND IN HIS WILL AS FIRST AND SECOND RESIDUARY LEGATEES, RESPECTIVELY, CANNOT SERVE TO CHANGE THE MANDATORY REQUIREMENTS OF THE CITED STATUTE NOR CONSTITUTE YOU A DESIGNATED BENEFICIARY WITHIN THE CONTEMPLATION OF THE LAW AND APPLICABLE REGULATIONS.

IT MAY BE STATED THAT SECTION 2771 MENTIONED ABOVE, IN SETTING FORTH THE ORDER OF PRECEDENCE OF PERSONS TO WHOM PAYMENT MAY BE MADE, LISTS AS THE FIFTH CLASS THE LEGAL REPRESENTATIVE, THAT IS, THE DULY APPOINTED ADMINISTRATOR OR EXECUTOR OF THE DECEDENT'S WILL. HOWEVER, SINCE A PARENT TAKES PRECEDENCE OVER A LEGAL REPRESENTATIVE, THERE WOULD BE NO AUTHORITY TO ALLOW THE BALANCE DUE TO THE EXECUTOR UNDER YOUR SON'S WILL EVEN THOUGH IT WERE SHOWN THAT AN EXECUTOR HAD BEEN DULY APPOINTED.

ACCORDINGLY, WE HOLD THAT THE ACTION TAKEN BY OUR CLAIMS DIVISION WAS CORRECT AND IS SUSTAINED.

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