B-59971, JUL. 1, 1959

B-59971, JUL. 1, 1959

TO MRS. NERVIE DAVIS:

REFERENCE IS MADE TO LETTERS DATED MAY 19 AND JUNE 24, 1959, WRITTEN ON BEHALF BY MR. J. HARRISON WESTOVER, ATTORNEY AT LAW, FURTHER CONCERNING THE BALANCE OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR LATE SON, THOMAS E. DAVIS, AS OF FEBRUARY 1, 1945, THE DATE OF RECEIPT OF EVIDENCE OF HIS DEATH WHILE SERVING IN THE ARMED FORCES OF THE UNITED STATES.

IN THE LETTER OF MAY 19, 1959, MR. WESTOVER SAYS THAT IN PENNSYLVANIA A PERSON IS PRESUMED TO BE DEAD IF HE IS ABSENT FROM HIS DOMICILE FOR SEVEN YEARS AND IS UNHEARD OF DURING THAT PERIOD. HE ALSO SAYS THAT THE ORPHANS' COURT OF CAMBRIA COUNTY, PENNSYLVANIA, DECREED THE LEGAL PRESUMPTION OF THE DEATH OF CYRUS GORDON DAVIS, THE FATHER OF YOUR LATE SON, AND THAT ON THE BASIS OF SUCH DECREE YOU WERE APPOINTED ADMINISTRATRIX OF THE ESTATE OF CYRUS GORDON DAVIS. THERE WAS ENCLOSED WITH THE LETTER OF MAY 19, 1959, A CERTIFICATE OF THE SAME DATE BY THE REGISTER OF THE PROBATE OF WILLS AND GRANTING OF LETTERS OF ADMINISTRATION OF CAMBRIA COUNTY, PENNSYLVANIA, CERTIFYING THAT YOU WERE APPOINTED SUCH ADMINISTRATRIX ON THAT DATE. REQUEST IS MADE THAT THE BALANCE DUE BE PAID TO YOU AS ADMINISTRATRIX OF THE ESTATE OF CYRUS GORDON DAVIS.

AS WE HAVE EXPLAINED TO YOU PREVIOUSLY, THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES WHO DIED PRIOR TO JANUARY 1, 1956, WAS GOVERNED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30. THAT ACT PROVIDED THAT IN THE ABSENCE OF A CLAIM FROM A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED MEMBER AND WHERE SUCH MEMBER WAS NOT SURVIVED BY A WIDOW OR CHILD, THE AMOUNT DUE NIGHT BE ALLOWED "TO THE FATHER AND MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE NO WIDOW, WIDOWER, CHILD, FATHER, OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES.' IT WILL BE NOTED THAT PAYMENT WAS AUTHORIZED UNDER THE STATUTE, IN THE DESIGNATED ORDER OF PRECEDENCE, TO THE HEIR OR HEIRS SURVIVING AT THE DATE OF OUR SETTLEMENT. NO PROVISION WAS MADE FOR PAYMENT TO THE LEGAL REPRESENTATIVE OF THE ESTATE OF A DECEASED HEIR. WHILE THE FOREGOING PROVISIONS OF THE 1946 ACT HAVE NOW BEEN SUPERSEDED BY SIMILAR PROVISIONS CONTAINED IN SECTION 29 OF PUBLIC LAW 85-861, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1563, NO CHANGE WAS MADE IN THE ORDER OF PRECEDENCE IN SETTLING SUCH ACCOUNTS. HENCE, YOUR APPOINTMENT AS ADMINISTRATRIX OF THE ESTATE OF THE FATHER OF THE DECEASED SOLDIER CONSTITUTES NO LEGAL BASIS TO ALLOW YOU THE BALANCE DUE IN THAT CAPACITY.

WHILE MR. WESTOVER STATES THAT THE ORPHANS' COURT OF CAMBRIA COUNTY, PENNSYLVANIA, DECREED THE LEGAL PRESUMPTION OF THE DEATH OF CYRUS GORDON DAVIS BECAUSE HE HAS BEEN ABSENT FROM HIS DOMICILE AND UNHEARD OF FOR MORE THAN SEVEN YEARS, SUCH DECREE DOES NOT APPEAR TO CONSTITUTE A JUDICIAL DETERMINATION THAT THE FATHER IS IN FACT DEAD AND, THEREFORE, AFFORDS NO BASIS TO ALLOW YOU THE BALANCE DUE AS THE SOLE SURVIVING PARENT.

IN OUR DECISION OF JANUARY 28, 1959, B-59971, WE EXPLAINED TO YOU THAT, IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, BARRING CLAIMS THAT ARE NOT RECEIVED HERE WITHIN 10 YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED, A CLAIM BY A LEGAL REPRESENTATIVE OF THE ESTATE OF YOUR LATE SON COULD NOW RECEIVE FAVORABLE CONSIDERATION ONLY IF SUCH A CLAIM IS ACCOMPANIED BY A DETERMINATION BY THE PROBATE COURT THAT YOU WOULD BE ENTITLED, PERSONALLY, TO RECEIVE THE FULL AMOUNT DUE.

FOR THE FOREGOING REASONS, THERE IS NO BASIS ON THE PRESENT RECORD TO ALLOW YOU THE BALANCE DUE.

HOWEVER, IN VIEW OF STATEMENTS IN YOUR PREVIOUS COMMUNICATIONS TO US TO THE EFFECT THAT YOUR HUSBAND, AFTER HE LEFT HOME, WAS A PATIENT IN HOSPITALS OF THE VETERANS ADMINISTRATION AT ASPINWALL, PENNSYLVANIA, AND DAYTON, OHIO, WE ARE ENDEAVORING TO ASCERTAIN FROM THAT ADMINISTRATION WHETHER ITS RECORDS SHOW YOUR HUSBAND IS LIVING OR DEAD. SHOULD IT BE ESTABLISHED THAT HE IS NO LONGER ALIVE, APPROPRIATE ACTION WILL BE TAKEN TO ALLOW YOU THE AMOUNT DUE YOUR SON'S ESTATE.