B-99153, APR. 17, 1969

B-99153, APR. 17, 1969

TO MR. THOMAS G. CLARKE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 27, 1968, AND ENCLOSURE, WRITTEN ON BEHALF OF MISS MAI COSTELLOE, 16 MARIAN CRESCENT, BALLY BUNION, IRELAND, CONCERNING HER CLAIM FOR UNPAID RETIRED PAY DUE THE ESTATE OF HER DECEASED UNCLE, WILLIAM COSTELLOE, AS A RETIRED FIRST SERGEANT, UNITED STATES ARMY, ON DATE OF DEATH, SEPTEMBER 27, 1947. ALSO WE HAVE YOUR LETTER OF MARCH 27, 1969, CONCERNING THE MATTER.

THE RECORD SHOWS THAT FOLLOWING THE PRESENTATION OF A CLAIM BY MISS MAI COSTELLOE ON SEPTEMBER 12, 1949, FOR THE AMOUNT DUE THE ESTATE OF WILLIAM COSTELLOE, YOU CORRESPONDED WITH THIS OFFICE ON HER BEHALF AT VARIOUS TIMES. BY LETTER DATED SEPTEMBER 18, 1950, MISS COSTELLOE WAS ADVISED BY THIS OFFICE THAT NO PAYMENT COULD BE MADE TO HER IN THE ABSENCE OF A COMPLETE SHOWING AS TO WHETHER THERE ARE OTHER LIVING CHILDREN OF DECEASED BROTHERS AND SISTERS OF THE DECEDENT.

BY LETTER OF SEPTEMBER 30, 1950, YOU INFORMED THIS OFFICE THAT THE DECEDENT IS SURVIVED BY MANY NEXT OF KIN "IN ALL PARTS OF THE WORLD.' ALSO, YOU INQUIRED WHETHER THIS OFFICE COULD MAKE AN ,EX GRATIA" PAYMENT UPON THE SUBMISSION OF A PERSONAL UNDERTAKING, INDEMNIFYING THE GENERAL ACCOUNTING OFFICE AGAINST ANY FUTURE CLAIM OR CLAIMS THAT MIGHT BE MADE FOR THE AMOUNT DUE. IN THIS RESPECT, YOU POINTED OUT THAT THE EXPENSE INCIDENT TO THE APPOINTMENT OF A LEGAL REPRESENTATIVE WOULD BE OUT OF PROPORTION TO THE BENEFIT WHICH WOULD ACCRUE.

IN A DECISION DATED JANUARY 16, 1951, B-99153, TO MISS COSTELLOE, COPY ENCLOSED, WE STATED, AMONG OTHER THINGS, THAT THIS OFFICE MUST BE GOVERNED BY THE APPLICABLE STATUTES IN THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES AND CONSEQUENTLY A GRACE OR FAVOR PAYMENT WITHOUT AUTHORITY OF LAW MAY NOT BE MADE. ALSO, WE QUOTED THE PROVISIONS OF THE APPLICABLE STATUTE, THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 10 U.S.C. 868 (1946 ED.), AND EXPLAINED WHY UNDER THOSE PROVISIONS WE ARE PRECLUDED FROM PAYING THE FULL AMOUNT, OR ANY AMOUNT, OF THE RETIRED PAY TO HER, IN THE ABSENCE OF INFORMATION AS TO THE SURVIVING RELATIVES WHO ARE ENTITLED TO SHARE IN THE AMOUNT DUE.

ON MARCH 21, 1952, YOU REQUESTED ADVICE AS TO THE AMOUNT OF THE ACCRUED RETIRED PAY DUE IN THIS CASE SINCE, AS YOU STATED, IT WAS YOUR INTENT TO EXTRACT A GRANT OF ADMINISTRATION ON THE ESTATE OF THE DECEDENT ON BEHALF OF MISS COSTELLOE. BY LETTER OF APRIL 14, 1952, THIS OFFICE ADVISED YOU THAT THERE IS DUE $167.07, REPRESENTING UNPAID RETIRED PAY FOR THE PERIOD SEPTEMBER 1 TO 27, 1947, AND THAT THE CLAIM OF AN ADMINISTRATOR SHOULD BE PRESENTED OVER HIS HANDWRITTEN SIGNATURE AND ACCOMPANIED BY A DULY AUTHENTICATED COPY OF HIS APPOINTMENT.

YOU HAVE RETURNED OFFICE LETTER OF APRIL 14, 1952, BY YOUR LETTER OF NOVEMBER 27, 1968, AND AGAIN ADVISE THAT THE COST OF ADMINISTRATION OF THE ESTATE WOULD BE OUT OF PROPORTION TO THE AMOUNT INVOLVED. ADDITIONALLY, YOU RELATE THAT THE DECEDENT HAS A SISTER RESIDING IN ENGLAND WHO WOULD HAVE TO RENOUNCE HER RIGHT TO EXTRACT A GRANT, AND YOU ASK WHETHER IT IS POSSIBLE TO PAY THE INVOLVED AMOUNT TO MISS COSTELLOE ON COMPLETION OF AN INDEMNITY OR OTHER SUCH UNDERTAKING. YOU SAY THAT YOU ARE PREPARED TO PERSONALLY ACT AS HER SURETY IF WE AGREE TO THIS COURSE OF ACTION AND THAT YOU ARE FULLY AWARE OF ALL THE FACTS AND CIRCUMSTANCES AS THE DECEDENT WAS YOUR UNCLE.

AS MISS COSTELLOE WAS INFORMED IN OUR DECISION OF JANUARY 16, 1951, OUR ACTION IN THIS CASE IS CONTROLLED SOLELY BY THE PERTINENT STATUTE, THE ACT OF JUNE 30, 1906, AS AMENDED, SUPRA. SINCE YOU INDICATE THAT SERGEANT COSTELLOE IS SURVIVED BY A SISTER AND OTHER RELATIVES BESIDES MISS COSTELLOE, SHE IS ENTITLED ONLY TO A PRO RATA SHARE OF THE AMOUNT DUE AS PROVIDED BY THE STATUTE. THE AMOUNT TO WHICH SHE IS ENTITLED CAN BE DETERMINED ONLY IF INFORMATION IS FURNISHED AS TO THE NAMES OF THE DECEDENT'S SURVIVING BROTHERS AND SISTERS AND THE NAMES OF DECEASED BROTHERS AND SISTERS WHO ARE SURVIVED BY DESCENDANTS.

AS STATED IN THE DECISION OF JANUARY 16, 1951, WE HAVE NO AUTHORITY TO ACCEPT A PERSONAL INDEMNITY OR OTHER SUCH UNDERTAKING AND PAY THE FULL AMOUNT TO MISS COSTELLOE AS A MATTER OF GRACE AS YOU SUGGEST. IF, HOWEVER, THE ABOVE MENTIONED INFORMATION IS FURNISHED THIS OFFICE WITH RESPECT TO THE SURVIVING BROTHERS AND SISTERS AS WELL AS THE DECEASED BROTHERS AND SISTERS OF THE DECEDENT WHO ARE SURVIVED BY DESCENDANTS, A SETTLEMENT FOR THE PRO RATA SHARE DUE MISS COSTELLOE WILL ISSUE IN HER FAVOR IN DUE COURSE.

IT MAY BE STATED THAT THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, BARS CLAIMS AGAINST THE UNITED STATES, WITH CERTAIN EXCEPTIONS, UNLESS SUCH CLAIMS ARE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED. SUCH PROVISIONS WOULD BE FOR APPLICATION WITH RESPECT TO ANY CLAIM OTHER THAN THE THE CLAIM OF MISS COSTELLOE THAT MIGHT NOW BE PRESENTED BY OTHER SURVIVORS OF SERGEANT COSTELLOE.