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B-152064, AUG. 8, 1963

B-152064 Aug 08, 1963
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ELIZABETH FRANCES ORTIZ DIXON: REFERENCE IS MADE TO YOUR RECENT COMMUNICATIONS REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 6. YOUR CLAIM WAS DISALLOWED NOT ONLY BECAUSE AN EXECUTOR HAD BEEN APPOINTED FOR YOUR BROTHER'S WILL WHO HAS PRIORITY OVER YOU AS A CLAIMANT. IS HIGHEST IN THE ORDER OF PRECEDENCE SET FORTH IN SECTION 2771 OF TITLE 10. YOU POINT OUT THAT WHILE THE DECEDENT MENTIONED A SON IN A WILL DRAWN IN JUNE 1950. HE ALSO STATED THEREIN THAT THE WHEREABOUTS OF THE SON WAS UNKNOWN. HIS NAME OR WHERE HE WAS BORN. YOUR ONLY INFORMATION REGARDING HIM BEING THAT CONTAINED IN THE DECEDENT'S WILL. YOU FURTHER STATE THAT ALTHOUGH YOU HAVE NO EVIDENCE OF THE SON'S DEATH. IT HAS NOT BEEN PROVEN THAT HE IS ALIVE AND YOU ASK WHETHER WE HAVE SUCH PROOF.

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B-152064, AUG. 8, 1963

TO MRS. ELIZABETH FRANCES ORTIZ DIXON:

REFERENCE IS MADE TO YOUR RECENT COMMUNICATIONS REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 6, 1963, WHICH DISALLOWED YOUR CLAIM AS SISTER OF IRVING S. ORTIZ, UNITED STATES NAVY, RETIRED, FOR PAY DUE HIM AT DATE OF DEATH, AUGUST 29, 1962. YOUR CLAIM WAS DISALLOWED NOT ONLY BECAUSE AN EXECUTOR HAD BEEN APPOINTED FOR YOUR BROTHER'S WILL WHO HAS PRIORITY OVER YOU AS A CLAIMANT, BUT FOR THE FURTHER REASON THAT THE MEMBER HAD A SON WHO, FROM THE INFORMATION OF RECORD AND IN THE ABSENCE OF ANY EVIDENCE OF HIS DEATH, IS HIGHEST IN THE ORDER OF PRECEDENCE SET FORTH IN SECTION 2771 OF TITLE 10, U.S.C. TO RECEIVE THE RETIRED PAY DUE YOUR DECEASED BROTHER.

YOU POINT OUT THAT WHILE THE DECEDENT MENTIONED A SON IN A WILL DRAWN IN JUNE 1950, HE ALSO STATED THEREIN THAT THE WHEREABOUTS OF THE SON WAS UNKNOWN. YOU SAY THAT NONE OF YOUR FAMILY KNEW THE SON, HIS NAME OR WHERE HE WAS BORN, YOUR ONLY INFORMATION REGARDING HIM BEING THAT CONTAINED IN THE DECEDENT'S WILL. YOU FURTHER STATE THAT ALTHOUGH YOU HAVE NO EVIDENCE OF THE SON'S DEATH, IT HAS NOT BEEN PROVEN THAT HE IS ALIVE AND YOU ASK WHETHER WE HAVE SUCH PROOF. APPARENTLY, IT IS YOUR CONTENTION THAT IN THE ABSENCE OF ANY CONCLUSIVE EVIDENCE SHOWING THE SON TO BE ALIVE HE SHOULD BE PRESUMED TO BE DEAD, THEREBY PERMITTING THE PAYMENT OF YOUR BROTHER'S RETIRED PAY TO THE EXECUTOR OF HIS WILL IN ACCORDANCE WITH THE ORDER OF PRECEDENCE SET FORTH IN 10 U.S.C. 2771, SUPRA, FOR DISTRIBUTION AS AN ASSET OF THE DECEDENT'S ESTATE.

WHILE WE HAVE NO PROOF THAT THE SON IS ALIVE, THE GENERAL RULE IS THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN TIME, AS IN THE CASE AT HAND WHERE THE BIRTH OF THE SON IS ACKNOWLEDGED BY THE FATHER IN HIS WILL, THE PRESUMPTION IS THAT HE IS STILL ALIVE UNTIL SUCH PRESUMPTION IS OVERCOME BY PROOF TO THE CONTRARY OR BY THE MORE POTENT PRESUMPTION OF DEATH. UNITED STATES V. WILDCAT, 244 U.S. 111; WHITE V. METROPOLITAN LIFE INSURANCE CO., 100 PA. 2D 691. CONSEQUENTLY, IN CASES OF THIS NATURE ARISING UNDER THE FEDERAL STATUTES, THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT WE PROCEED ON THE BASIS THAT THE SON IS OR MAY BE ALIVE, UNTIL THE FACT OF HIS DEATH IS ESTABLISHED OR IS JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.

THEREFORE, ON THE PRESENT RECORD SETTLEMENT MAY NOT ISSUE FOR THE AMOUNTS INVOLVED IN FAVOR OF THE EXECUTOR FOR DISTRIBUTION AMONG THE BENEFICIARIES OF YOUR BROTHER'S WILL.

CONCERNING YOUR STATEMENT THAT YOU HAVE THE ASHES OF THE FORMER SERVICEMAN IN YOUR HOME AND YOU DESIRE AN APPROPRIATE BURIAL FOR SUCH REMAINS, YOU ARE ADVISED THAT MATTERS OF THAT NATURE ARE NOT WITHIN THE JURISDICTION OF THIS OFFICE BUT FALL GENERALLY WITHIN THE PURVIEW OF THE VETERANS ADMINISTRATION. ACCORDINGLY, ANY REQUEST OR INQUIRY YOU MAY HAVE CONCERNING THE DISPOSAL OF YOUR BROTHER'S REMAINS SHOULD BE ADDRESSED TO THE VETERANS ADMINISTRATION, WASHINGTON 25, D.C. ..END :

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