B-140601, OCT. 27, 1959

B-140601, OCT. 27, 1959

TO MR. WILLIAM E. BAILEY, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 17, 1959, WITH ENCLOSURE, AND TO YOUR LETTER DATED SEPTEMBER 28, 1959, CONCERNING THE CLAIM OF MRS. PATRICIA WRIGHT PALMER AS COMMON LAW WIDOW, FOR ARREARS OF PAY AND THE SIX MONTHS' DEATH GRATUITY DUE IN THE CASE OF THE LATE WILLIAM H. PALMER, WHO DIED AUGUST 23, 1959, WHILE SERVING AS MAJOR, OHIO NATIONAL GUARD.

THE SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE ARMED FORCES WHO DIE AFTER DECEMBER 31, 1955, IS GOVERNED BY 10 U.S.C., SECTION 2771. THAT STATUTE PROVIDES THAT AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH THE DECEDENT WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH: (1) BENEFICIARY DESIGNATED BY THE DECEDENT IN WRITING, RECEIVED BEFORE THE DECEDENT'S DEATH, AT THE PLACE NAMED IN REGULATIONS PRESCRIBED BY THE SECRETARY OF THE DEPARTMENT CONCERNED; (2) SURVIVING SPOUSE; (3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION; (4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER IS DEAD, THE SURVIVOR; (5) LEGAL REPRESENTATIVE; AND (6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER. WHILE THE RECORD SHOWS THAT YOU HAVE BEEN APPOINTED ADMINISTRATOR OF THE DECEDENT'S ESTATE, PAYMENT OF THE ARREARS OF PAY TO YOU IN THAT CAPACITY IS NOT AUTHORIZED SINCE, IRRESPECTIVE OF WHETHER THE DECEDENT WAS OR WAS NOT SURVIVED BY A LEGAL WIDOW, HE IS SURVIVED BY FOUR MINOR CHILDREN RESIDING IN COVINA, CALIFORNIA, WITH THEIR MOTHER WHO IS THEIR LEGAL GUARDIAN AND THE DIVORCED WIFE OF THE DECEDENT.

WITH RESPECT TO THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, 10 U.S.C., SECTION 1477, PROVIDES THAT SUCH GRATUITY SHALL BE PAID FIRST TO A SURVIVING WIDOW, AND IF THERE BE NONE, TO SURVIVING CHILDREN OF THE DECEDENT. NO PROVISION IS MADE FOR PAYMENT TO A LEGAL REPRESENTATIVE AND, ACCORDINGLY, PAYMENT OF THE GRATUITY TO YOU AS ADMINISTRATOR IS NOT AUTHORIZED.

AFTER THE RECEIPT HERE OF THE CLAIM OF MRS. PATRICIA WRIGHT PALMER FOR PAYMENT OF THE ARREARS OF PAY AND THE SIX MONTHS' DEATH GRATUITY ON THE BASIS THAT SHE WAS MAJOR PALMER'S COMMON LAW WIFE, OUR CLAIMS DIVISION, BY LETTER DATED JUNE 18, 1959, ADVISED HER THAT PAYMENT OF ANY AMOUNT DUE MAY NOT BE MADE UNTIL A COURT OF COMPETENT JURISDICTION DETERMINED THAT THE DECEDENT WAS OR WAS NOT SURVIVED BY A WIDOW. SINCE A CLAIM FOR THE AMOUNT DUE HAS BEEN PRESENTED ON BEHALF OF THE FOUR MINOR CHILDREN OF THE DECEDENT, ON THE BASIS THAT HE WAS NOT SURVIVED BY A LEGAL WIDOW, THE CLAIM OF MRS. PATRICIA WRIGHT PALMER, MAY NOT BE RECOGNIZED UNLESS THERE BE FURNISHED EVIDENCE OF A DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT SHE IS THE DECEDENT'S LAWFUL WIDOW, AFTER A FULL DISCLOSURE TO THE COURT OF THE FACTS ON WHICH THE ALLEGED COMMON LAW MARRIAGE IS BASED. THE MERE GRANTING OF LETTERS OF ADMINISTRATION ON THE BASIS THAT MRS. PALMER WAS NAMED AS THE COMMON LAW WIDOW IN THE APPLICATION FOR LETTERS OF ADMINISTRATION, AS IS INDICATED IN THE AFFIDAVIT EXECUTED JUNE 28, 1959, BY THE DEPUTY CLERK OF THE PROBATE COURT OF CLARK COUNTY, OHIO, WHICH AFFIDAVIT WAS ENCLOSED WITH YOUR LETTER OF JULY 17, 1959, DOES NOT APPEAR TO CONSTITUTE ANY SUCH DETERMINATION.

HOWEVER, IF THE PROBATE COURT OF CLARK COUNTY, OHIO, HAS MADE ANY AWARD IN FAVOR OF MRS. PATRICIA WRIGHT PALMER AFTER A JUDICIAL DETERMINATION THAT SHE IS THE LAWFUL WIDOW, YOU MAY SUBMIT TO US IN SUPPORT OF HER CLAIM AN AUTHENTICATED COPY OF SUCH DETERMINATION, TOGETHER WITH EVIDENCE THAT THE COURT WAS FULLY ADVISED OF THE FACTS ON WHICH THE ALLEGED MARRIAGE IS BASED. UPON RECEIPT OF SUCH EVIDENCE THE MATTER WILL BE GIVEN FURTHER CONSIDERATION.