B-147358, JAN. 8, 1962

B-147358, JAN. 8, 1962

TO MR. JACOB H. HILDEBRANDT AND MRS. JESSIE L. HILDEBRANDT:

WE REFER TO YOUR LETTER OF SEPTEMBER 25, 1961, ENCLOSING ADDITIONAL EVIDENCE AND REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF AUGUST 21, 1961, WHICH DISALLOWED YOUR CLAIM AS FATHER AND MOTHER OF JOHN E. HILDEBRANDT, DECEASED, FOR UNPAID COMPENSATION DUE HIM FROM THE UNITED STATES.

THE ESSENTIAL FACTS OF THE CASE ARE THAT YOUR SON, A FORMER EMPLOYEE OF THE POST OFFICE DEPARTMENT, DIED DURING THE PENDENCY OF AN INTERLOCUTORY JUDGMENT OF DIVORCE FROM HIS WIFE PRISCILLA KATHRYN HILDEBRANDT. INCIDENT TO THE DIVORCE PROCEEDING AND INCORPORATED AS PART OF THE INTERLOCUTORY JUDGMENT WAS A PROPERTY SETTLEMENT AGREEMENT ENTERED INTO BY AND BETWEEN YOUR SON AND HIS WIFE UNDER WHICH EACH WAIVED AND RELINQUISHED UNTO THE OTHER ALL CLAIMS WHICH EACH MIGHT HAVE AGAINST THE PROPERTY OF THE OTHER BY REASON OF THE MARITAL RELATIONSHIP, INCLUDING ALL RIGHTS OF SUCCESSION, INHERITANCE AND OTHER RIGHTS GRANTED BY THE LAW OF THE STATE OF CALIFORNIA.

THE UNPAID COMPENSATION CLAIMED BY YOU IS PAYABLE UNDER A FEDERAL STATUTE, VIZ., THE ACT OF AUGUST 3, 1950, 5 U.S.C. 61F AND G, AND IN THE ABSENCE OF A DESIGNATED BENEFICIARY AND THE PROPERTY SETTLEMENT AGREEMENT, IT UNQUESTIONABLY WOULD BE PAYABLE TO YOUR SON'S WIDOW.

UNDER THE LAW OF THE STATE OF CALIFORNIA IT IS WELL ESTABLISHED THAT AN INTERLOCUTORY DECREE OF JUDGMENT OF DIVORCE DOES NOT DISSOLVE A MARRIAGE AND THAT A WIFE SURVIVING HER HUSBAND WHO DIES DURING THE PENDENCY OF SUCH A JUDGMENT BECOMES HIS WIDOW. THE REMAINING QUESTIONS, VIZ., WHETHER THE PROPERTY SETTLEMENT AGREEMENT REMOVED PRISCILLA KATHRYN HILDEBRANDT FROM THE CATEGORY OF ,WIDOW" AS THAT TERM IS USED IN THE 1950 STATUTE AND WHETHER THE AGREEMENT PURPORTS TO ASSIGN A CLAIM AGAINST THE UNITED STATES IN CONTRAVENTION OF SECTION 3477, REVISED STATUTES, 31 U.S.C. 203, ARE NOT EASILY RESOLVED.

CONCERNING THE FIRST QUESTION WE FIND NO ANSWER IN JUDICIAL PRECEDENT, THE ONLY CASE FOUND ON THE 1950 STATUTE BEING THAT OF ASHTON V. ASHTON, REPORTED IN 177 A. 2D 459. THE COURT IN THAT CASE RULED ONLY THAT THE AMOUNT PAYABLE UNDER THE 1950 ACT WAS NOT AN ASSET OF THE DECEDENT'S ESTATE AND THEREFORE WAS PAYABLE TO HIS WIDOW, NOTWITHSTANDING THE LAW OF DESCENT AND DISTRIBUTION OF THE DISTRICT OF COLUMBIA TO THE CONTRARY. REACHING THAT CONCLUSION THE COURT SAID:

"* * * THE LEGISLATIVE HISTORY OF THE LAW (THE ACT OF AUGUST 3, 1950) CLEARLY INDICATES THAT ONE PURPOSE OF THE LAW WAS TO SAVE THE GOVERNMENT EXPENSE IN THE ADJUSTING AND SETTLING OF THE ACCOUNTS OF DECEASED EMPLOYEES, BUT IT ALSO INDICATES THAT ANOTHER PURPOSE WAS TO PROVIDE MORE EXPEDITIOUS PAYMENT TO THE FAMILIES OF EMPLOYEES. OUR STUDY OF THE STATUTE CONVINCES US THAT ITS EFFECT IS TO GIVE THE EMPLOYEE THE POWER TO DESIGNATE A BENEFICIARY, AND IN THE ABSENCE OF SUCH DESIGNATION BY THE EMPLOYEE, THE BENEFICIARY IS AUTOMATICALLY DESIGNATED IN THE ORDER FIXED BY THE STATUTE. * * *"

THE VIEW EXPRESSED BY THE COURT IN THAT CASE IS IN CONSONANCE WITH VIEWS EXPRESSED BY COURTS OF THE STATE OF CALIFORNIA WHEN UNDER SIMILAR STATUTES THERE MAY BE A CONFLICT BETWEEN STATE AND FEDERAL LAW.

AS TO THE SECOND QUESTION OUR POLICY UNDER THE 1950 LAW, BECAUSE OF SECTION 3477, REVISED STATUTES, HAS BEEN TO REFUSE TO ACCEPT WAIVERS AS TRANSFERRING RIGHTS AMONG OR BETWEEN CLASSES OF BENEFICIARIES.