B-153920, MAY 13, 1964

B-153920, MAY 13, 1964

TO MRS. MARY E. DILL, MR. GEORGE D. DILL:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 31, 1964, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION UNDER DATE OF MARCH 19, 1964, DENYING PAYMENT OF YOUR CLAIM FOR RETIRED PAY IN THE AMOUNT OF $168.12 DUE IN THE CASE OF THOMAS W. ANDERSON, RA 349 611, UNITED STATES ARMY, RETIRED, AT DATE OF DEATH, OCTOBER 28, 1963.

THE RECORD DISCLOSES THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW, DESCENDANTS, PARENT, BROTHER OR SISTER OR THEIR DESCENDANTS. YOU CONTEND THAT SINCE MR. ANDERSON LIVED IN YOUR HOME FROM AUGUST 30, 1947, TO AUGUST 8, 1961, WHEN HE WENT TO LAUREL SANITARIUM--- BEING TREATED BY YOU AS ONE OF THE FAMILY AND DEPENDING ON YOU FOR EVERYTHING INCLUDING HELP IN HIS BUSINESS AFFAIRS--- HIS ACTION IN NAMING YOU IN HIS WILL ENTITLED YOU TO THE AMOUNT INVOLVED AS HIS "LEGAL HEIRS.'

AS YOU HAVE BEEN ADVISED, THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES, INCLUDING A RETIRED PERSON, WHO DIES AFTER DECEMBER 31, 1955, IS GOVERNED BY 10 U.S.C. 2771, WHICH PROVIDES THAT AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

(1) BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AN AMOUNT, IF THE DESIGNATION IS RECEIVED, BEFORE THE DECEASED MEMBER'S DEATH, AT THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY 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.

(6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER.'

IT WILL BE NOTED THAT OTHER THAN UNDER CATEGORIES (1) AND (6) THE STATUTE MAKES NO PROVISION FOR PAYMENT OF THE AMOUNT DUE TO OTHER THAN A RELATIVE OF THE DECEASED OR THE LEGALLY APPOINTED REPRESENTATIVE OF HIS ESTATE. IS SPECIFICALLY REQUIRED, IN ORDER TO QUALIFY UNDER CATEGORY (1), THAT THE DESIGNATION OF A BENEFICIARY BE MADE BY THE MEMBER IN WRITING AND BE RECEIVED AT THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED. THE ARMY REGULATIONS RELATING TO THE DESIGNATION OF BENEFICIARIES CONTAINED IN AR 640-40 AND CHAPTER 10, SECTION VI, AR 37- 104, PRESCRIBE THE APPROVED FORM (NOW DA FORM 41) TO BE USED FOR THIS PURPOSE AND REQUIRE THAT THE DESIGNATIONS OF BENEFICIARIES BY RETIRED PERSONNEL BE FORWARDED TO THE FINANCE CENTER, ATTENTION: RETIRED PAY DIVISION, U.S. ARMY, INDIANAPOLIS 49, INDIANA. IN CASE OF DEATH OF THE BENEFICIARY BEFORE THAT OF THE DESIGNATOR, A NEW DESIGNATION WOULD HAVE TO BE MADE IN ORDER TO BE EFFECTIVE.

ON JANUARY 3, 1956, MR. ANDERSON DESIGNATED HIS BROTHER, FRANCIS S. ANDERSON, TO RECEIVE THE FULL AMOUNT OF ANY ARREARS OF HIS RETIRED PAY. ALTHOUGH YOU STATE THAT FRANCIS DIED SEPTEMBER 13, 1958, THERE IS NO EVIDENCE THAT A NEW DESIGNATION WAS EFFECTED BY MR. ANDERSON. THE NAMING OF A LEGATEE IN A WILL DOES NOT CONSTITUTE A DESIGNATION OF A BENEFICIARY TO RECEIVE ARREARS OF PAY UNDER THE ABOVE-CITED REGULATIONS.

THE FILE DISCLOSES THAT THERE WILL BE NO PROBATE OF MR. ANDERSON'S WILL AS THERE WAS NOT SUFFICIENT ESTATE TO WARRANT THAT ACTION. AS A GENERAL RULE A WILL IS WITHOUT LEGAL EFFECT UNTIL PROBATED. IN THE ABSENCE OF SUCH PROBATE PROCEEDINGS, YOU CANNOT CLAIM AS A LEGATEE UNDER THAT WILL. WHILE SECTION 630 OF THE CALIFORNIA PROBATE CODE PROVIDES THAT IN CERTAIN CASES INVOLVING SMALL AMOUNTS,"THE SURVIVING SPOUSE, THE CHILDREN, LAWFUL ISSUE OF DECEASED CHILDREN, THE PARENT, THE BROTHER OR SISTER OF THE DECEDENT, OR THE GUARDIAN OF THE ESTATE OF ANY MINOR OR INSANE OR INCOMPETENT PERSON BEARING SUCH RELATIONSHIP TO THE DECEDENT, IF SUCH PERSON HAS A RIGHT TO SUCCEED TO THE PROPERTY OF THE DECEDENT, OR IS THE SOLE BENEFICIARY UNDER THE LAST WILL AND TESTAMENT OF THE DECEDENT, MAY, WITHOUT PROCURING LETTERS OF ADMINISTRATION, OR AWAITING THE PROBATE OF THE WILL, COLLECT ANY MONEY DUE THE DECEDENT," IT IS OUR VIEW THAT UNDER THIS SECTION THE PERSON WHO MAY CLAIM AS A SOLE BENEFICIARY UNDER THE LAST WILL AND TESTAMENT OF THE DECEDENT IS LIMITED TO ONE OF THE RELATIVES SPECIFIED IN THE STATUTE.

IN VIEW OF THE FOREGOING, WE TRUST THAT YOU WILL UNDERSTAND THAT NOTWITHSTANDING THE CLOSE FRIENDSHIP YOU ENJOYED WITH THE DECEDENT, WE FIND NOTHING IN THE PROVISIONS OF 10 U.S.C. 2771 NOR THE SUCCESSION STATUTE OF THE STATE OF CALIFORNIA WHICH WOULD QUALIFY YOU TO RECEIVE THE AMOUNT DUE THE ESTATE.