B-91021, FEB 6, 1950

B-91021, FEB 6, 1950

PRECIS-UNAVAILABLE

MRS. WINNIE BRIDGES:

REFERENCE IS MADE TO YOUR LETTERS DATED NOVEMBER 3 AND 4, 1949, CONCERNING SETTLEMENT OF THIS OFFICE DATED OCTOBER 31, 1949, WHICH DISALLOWED YOUR CLAIM FOR ARREARS OF PAY DUE YOUR STEPFATHER, THE LATE FREDERICK W. BEST (RETIRED), U.S. NAVY, FOR THE REASON THAT THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, GOVERNING THE SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE ARMED FORCES, CONTAINS NO PROVISION AUTHORIZING DISTRIBUTION TO A STEPCHILD OF AMOUNTS DUE A DECEDENT.

YOU STATE THAT AT THE DEATH OF FREDERICK W. BEST, YOUR STEPFATHER, A CHECK FOR $132 WHICH HAD NOT BEEN ENDORSED BY HIM WAS RETURNED TO THE NAVY DEPARTMENT; THAT YOUR CLAIM "IS FOR DEBTS OF DECEASED SERVICEMAN AND HIS WIDOW"; THAT YOU MADE FUNERAL ARRANGEMENTS FOR THE DECEASED AND PROVIDED FOR YOUR MOTHER-- DECEDENT'S WIDOW-- UNTIL HER DEATH ON AUGUST 26, 1949; AND THAT AFTER HER DEATH YOU AGAIN HAD TO MAKE FUNERAL ARRANGEMENTS AND PAY BILLS. YOU STATE IT IS DESIRED TO APPLY THE SUM OF $132 DUE THE ESTATE OF FREDERICK W. BEST AND PENSION DUE HIS WIDOW AGAINST THESE OUTSTANDING BILLS. INSOFAR AS FUNERAL EXPENSES ARE CONCERNED IT WOULD APPEAR THAT SUCH BILLS AS MAY HAVE BEEN PAID BY YOU PERTAIN TO YOUR MOTHER'S FUNERAL, SINCE IN HER APPLICATION FOR PAYMENT OF RETIRED PAY DUE HER LATE HUSBAND SHE FURNISHED A STATEMENT FROM SEASHOLE FUNERAL PARLORS, JACKSONVILLE, FLORIDA, WHICH SHOWED THAT OF THE TOTAL BILL OF $320.14 FOR FUNERAL EXPENSES SHE HAD PAID $20.14; THAT $150 WAS PAID BY THE COASTAL STATES LIFE INSURANCE COMPANY; AND THAT THE BALANCE OF $150 WAS TO BE PAID BY THE VETERANS ADMINISTRATION.

THE ACT OF FEBRUARY 25, 1946, HEREINBEFORE REFERRED TO, PROVIDES IN PERTINENT PART AS FOLLOWS:

"*** HEREAFTER, IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE NAVY, MARINE CORPS, AND COAST GUARD, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE DECEDENT'S WIDOW, WIDOWER, OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW OR WIDOWER; SECOND, IF DECEDENT LEFT NO WIDOW OR WIDOWER, OR THE WIDOW OR WIDOWER BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE PER STIRPES; THIRD, IF NO WIDOW, WIDOWER, OR DESCENDANTS, THEN TO THE FATHER AND MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE NO WIDOW, WIDOWER, CHILD, FATHER, OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STRIPES: PROVIDED, THAT THIS ACT SHALL NOT BE SO CONSTRUED AS TO PREVENT PAYMENT FROM THE AMOUNT DUE THE DECEDENT'S ESTATE OF FUNERAL EXPENSES, PROVIDED A CLAIM THEREFOR IS PRESENTED BY THE PERSON OR PERSONS WHO ACTUALLY PAID THE SAME BEFORE SETTLEMENT BY THE ACCOUNTING OFFICERS."

IT WILL BE SEEN THAT NO PROVISION IS MADE BY THE ABOVE-QUOTED ACT FOR PAYMENT OF DEBTS OF THE DECEDENT AND REIMBURSEMENT OF FUNERAL EXPENSES FROM THE AMOUNT FOUND DUE IS AUTHORIZED TO BE MADE ONLY IF A CLAIM IS PRESENTED BY THE PERSON OR PERSONS WHO ACTUALLY PAID THE SAME. OF COURSE IF A CLAIM WHERE PRESENTED BY LEGAL REPRESENTATIVE OF YOUR STEPFATHER'S ESTATE, AND PAYMENT WERE MADE TO HIM IN SUCH REPRESENTATIVE CAPACITY, CLAIMS AND DEMANDS BY CREDITORS OF THE ESTATE PROBABLY WOULD RECEIVE CONSIDERATION UNDER APPLICABLE PROVISIONS OF STATE STATUTES. ALSO, IT WILL BE SEEN THAT UNDER THE SAID ACT WHATEVER RIGHT YOUR MOTHER MAY HAVE HAD TO PAYMENT OF THE ARREARS OF PAY DUE YOUR STEPFATHER WAS NOT A VESTED RIGHT AT THE TIME OF HIS DEATH WHICH WOULD BECOME A PART OF HER ESTATE AND BE AVAILABLE FOR PAYMENT OF HER DEBTS OR FOR PAYMENT TO YOU EITHER AS HER LEGAL HEIR OR IN REIMBURSEMENT FOR EXPENSES INCURRED BY YOU ON HER ACCOUNT. AS TO YOUR CLAIM AS STEPDAUGHTER OF THE DECEASED SERVICEMAN, IT IS WELL SETTLED THAT THE TERM "CHILDREN AS USED IN SIMILAR STATUTES DOES NOT INCLUDE A STEPCHILD OR FOSTER CHILD, EXCEPT IN CERTAIN CASES WHERE IT IS AFFIRMATIVELY ESTABLISHED THAT THE CLAIMING STEPCHILD OR FOSTER CHILD WAS LEGALLY ADOPTED BY THE DECEDENT AND THEREFORE BECAME HIS LEGAL HEIR. SEE 25 COMP. DEC. 720, 9 COMP.GEN. 38.

BASED ON THE INFORMATION BEFORE THIS OFFICE, THE SETTLEMENT OF OCTOBER 31, 1949, PROPERLY DISALLOWED YOUR CLAIM AS STEPCHILD FOR ARREARS OF PAY DUE IN THE CASE OF THE LATE FREDERICK W. BEST, AND THE SETTLEMENT IS SUSTAINED.