B-143278, NOV. 14, 1960

B-143278, NOV. 14, 1960

TO W. S. NORTHCUTT, ESQUIRE:

ON OCTOBER 6, 1960, YOU REQUESTED OUR RECONSIDERATION OF YOUR PROPOSAL THAT THE AMOUNT DUE HENRY BANKS, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE ARMY, ATLANTA GENERAL DEPOT, AT THE TIME OF HIS DEATH BE PAID IN EQUAL SHARES TO RUBY GALES BANKS, THE ALLEGED WIDOW OF THE DECEASED, AND ALFRED N. BANKS, FATHER OF THE DECEASED.

YOU HAVE SUBMITTED AN AGREEMENT SIGNED BY RUBY GALES BANKS, MARY HARGROVE, AS GUARDIAN OF THE ILLEGITIMATE MINOR CHILD OF THE DECEASED, AND N. A. BANKS, ADMINISTRATOR OF THE STATE, AND YOU SAY THAT ALFRED N. BANKS WILL SIGN THE AGREEMENT SHOULD WE AGREE TO PAYMENT OF THE AMOUNT DUE IN EQUAL SHARES TO RUBY GALES BANKS AND ALFRED N. BANKS.

IN HIS LETTER OF OCTOBER 20, 1960, G. SEALS AIKEN, ATTORNEY FOR RUBY GALES BANKS, SAYS THAT HE CAN PROVE THE ENTITLEMENT OF HIS CLIENT TO THE AMOUNT IN QUESTION, BUT THAT, IN VIEW OF THE COST OF LITIGATION WHICH WOULD BE NECESSARY TO PROVE SUCH RIGHT, HE AND HIS CLIENT ARE WILLING TO AGREE TO THE PROPOSED SETTLEMENT. YOU CONTEST THE EXISTENCE OF A COMMON- LAW MARRIAGE BETWEEN THE DECEASED AND RUBY GALES BANKS, BUT YOU ARE ALSO WILLING TO ENTER INTO THE PROPOSED COMPROMISE SETTLEMENT BECAUSE OF THE COST OF LITIGATION.

THE ACT OF AUGUST 3, 1950, 64 STAT. 395, 5 U.S.C. 61F-K, PROVIDES FOR THE PAYMENT OF THE AMOUNT DUE AN EMPLOYEE AT THE TIME OF HIS DEATH, FIRST TO THE PERSON DESIGNATED IN WRITING BY SUCH EMPLOYEE, SECOND TO THE WIDOW, THIRD TO THE CHILDREN, FOURTH TO THE PARENTS AND FIFTH TO THE ADMINISTRATOR OF THE ESTATE AND THAT SUCH PAYMENT WILL BE A BAR TO RECOVERY BY ANY OTHER PERSON. ALTHOUGH OUR OFFICE IS VESTED WITH AUTHORITY TO PROMULGATE REGULATIONS PURSUANT TO THAT ACT THAT AUTHORITY EXTENDS ONLY TO PAYMENTS MADE ACCORDING TO THE ORDER OF PRECEDENCE ESTABLISHED THEREIN.

YOU CITE THE CASES UNITED STATES V. CHOLEAU, 102 U.S. 603; CLYDE V. UNITED STATES, 80 U.S. 38; AND UNITED STATES V. CHILD AND CO., 79 U.S. 232, IN SUPPORT OF YOUR VIEW THAT OUR OFFICE HAS AUTHORITY TO PAY THE AMOUNT DUE IN THE MANNER SET FORTH IN THE SETTLEMENT AGREEMENT BETWEEN THE TWO CLAIMANTS. THOSE CASES INVOLVED THE PAYMENT OF A SUM OF MONEY IN LIQUIDATION OF A DEBT THE EXACT AMOUNT OF WHICH WAS IN DISPUTE. OP.ATTY.GEN. 591, ALSO CITED BY YOU, INVOLVES A SIMILAR SITUATION. HERE, HOWEVER, THE AMOUNT DUE IS NOT IN DISPUTE. EITHER ALFRED N. BANKS OR RUBY GALES BANKS, APPEARS TO BE ENTITLED TO THE WHOLE AMOUNT. FURTHERMORE, NOT ONE OF THE CASES CITED BY YOU INVOLVES A STATUTORY PROVISION DIRECTING PAYMENT TO A CERTAIN PERSON SUCH AS IS CONTAINED IN THE ACT OF AUGUST 3, 1950, SUPRA. IN UNITED STATES V. CHOLEAU, SUPRA, THE COURT SPECIFICALLY REFERRED TO STATUTORY AUTHORITY AUTHORIZING THE GOVERNMENT TO COMPROMISE CLAIMS. IN VIEW OF THE MANDATORY PROVISIONS OF THE 1950 ACT WE ARE WITHOUT AUTHORITY TO MAKE PAYMENT OF THE AMOUNT IN QUESTION WITHOUT A DETERMINATION OF THE PERSON ENTITLED TO PAYMENT.

WE ARE AWARE OF THE RULE WHICH IS GENERALLY ACCEPTED BY THE COURTS, THAT A FAMILY AGREEMENT ENTERED INTO BY THE HEIRS OF A DECEASED REGARDING THE DISPOSITION OF THE ESTATE WILL USUALLY BE ENFORCED. 16 AM.JUR., DESCENT AND DISTRIBUTION SEC. 147; 26A CJS, DESCENT AND DISTRIBUTION SEC. 73. HOWEVER, SINCE NO CASE CAN BE FOUND WHICH APPROVES A FAMILY AGREEMENT UNDER THE ACT OF AUGUST 3, 1950, OR ANY SIMILAR FEDERAL LEGISLATION, AND SINCE ALSO, THERE IS DOUBT AS TO THE APPLICATION OF SUCH RULE TO THE FACTS AT HAND, WE ARE UNABLE TO AGREE TO PAYMENT PURSUANT TO THE AGREEMENT WHICH YOU PROPOSE.