B-133409, SEP. 18, 1957

B-133409, SEP. 18, 1957

TO MR. RICHARD S. KAPLAN, SPECIAL REPRESENTATIVE, INDIANA STATE VETERANS SERVICE OFFICE:

YOUR LETTER OF JULY 5, 1957, APPARENTLY WRITTEN IN BEHALF OF MRS. GILLIE M. MCDONALD, CONCERNS UNITED STATES TREASURY CHECK NO. 5,509 DRAWN TO THE ORDER OF HER SON, ROBERT E. MCDONALD. THIS CHECK WAS MAILED IN CARE OF MRS. MCDONALD AND AS THE PAYEE OF THE CHECK HAS BEEN MISSING SINCE JANUARY 21, 1946, YOU REQUEST OUR ADVISE AS TO WHETHER PROCEEDINGS SHOULD BE INITIATED TO HAVE ROBERT E. MCDONALD DECLARED DEAD.

THE COURTS GENERALLY HOLD THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME, THE PRESUMPTION, IN THE ABSENCE OF PROOF TO THE CONTRARY, IS THAT HE IS STILL ALIVE UNTIL SUCH PRESUMPTION IS OVERCOME BY THE MORE POTENT PRESUMPTION OF DEATH. UNITED STATES V. WILDCAT, 244 U.S. 111; WHITE V. METROPOLITAN LIFE INS. CO., 100 P.2D 691. ALSO, A MERE UNEXPLAINED ABSENCE DOES NOT CREATE A PRESUMPTION OF DEATH. BUTLER V. MUTUAL LIFE INS. CO. OF NEW YORK, 121 N.E. 758.

CONSEQUENTLY, IN CASES OF THIS NATURE, THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT OUR OFFICE PROCEED ON THE BASIS THAT THE PAYEE IS OR MAY BE ALIVE, UNTIL THE FACT OF HIS DEATH IS ESTABLISHED OR IS JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.

HENCE, UNTIL THIS OFFICE IS FURNISHED WITH EVIDENCE OF THE PAYEE'S DEATH OR, IN THE ALTERNATIVE, WITH AN AUTHENTICATED COPY OF A DECREE OF A COURT OF COMPETENT JURISDICTION DECLARING HIM TO BE LEGALLY DEAD WE MUST WITHHOLD PAYMENT OF THIS CHECK ON THE PRESUMPTION THAT HE IS STILL ALIVE.