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SENDLBECK: REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE ON DECEMBER 27. THERE WAS RECEIVED IN OUR OFFICE A LETTER DATED JUNE 9. YOU CERTIFIED THAT YOUR LATE SON WAS NOT SURVIVED BY A WIDOW OR CHILD BUT THAT HE WAS SURVIVED BY YOU AND HIS MOTHER. REPRESENTING ONE-HALF OF THE AMOUNT DUE AND ADVISED YOU THAT THE REMAINING ONE-HALF OF THE AMOUNT DUE WAS RESERVED FOR THE MOTHER. THE FATHER AND MOTHER WERE ENTITLED TO EQUAL SHARES OF THE ESTATE. IF THE DECEDENT WAS NOT SURVIVED BY A WIDOW OR CHILD. IN YOUR PRESENT COMMUNICATION YOU REPEAT YOUR PREVIOUS STATEMENTS AS TO THE MOTHER LEAVING YOU AND THE CHILDREN AND THAT YOU HAVE NOT BEEN ABLE TO LOCATE HER. YOU ASK WHAT WILL BE DONE WITH THE BALANCE DUE AND YOU EXPRESS THE BELIEF THAT THE DECEDENT'S PATERNAL GRANDMOTHER.

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B-135062, MAR. 19, 1958

TO MR. MICHAEL J. SENDLBECK:

REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE ON DECEMBER 27, 1957, CONCERNING YOUR CLAIM FOR THE BALANCE OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR LATE SON, RICHARD H. SENDLBECK, WHO DIED APRIL 24, 1944, WHILE SERVING AS AN ENLISTED MAN IN THE ARMY.

ON JUNE 13, 1944, THERE WAS RECEIVED IN OUR OFFICE A LETTER DATED JUNE 9, 1944, FROM THE DEPARTMENT OF THE ARMY ENCLOSING YOUR APPLICATION DATED MAY 19, 1944, FOR THE AMOUNT DUE THE ESTATE OF THE DECEDENT. YOU CERTIFIED THAT YOUR LATE SON WAS NOT SURVIVED BY A WIDOW OR CHILD BUT THAT HE WAS SURVIVED BY YOU AND HIS MOTHER, GIVING HER ADDRESS AS BUFFALO, NEW YORK. IT APPEARING FROM INFORMATION FURNISHED BY THE DEPARTMENT OF THE ARMY THAT THE ARREARS OF PAY DUE AMOUNTED TO $110.76, OUR CLAIMS DIVISION BY SETTLEMENT DATED OCTOBER 7, 1944, ALLOWED YOU THE SUM OF $55.38, REPRESENTING ONE-HALF OF THE AMOUNT DUE AND ADVISED YOU THAT THE REMAINING ONE-HALF OF THE AMOUNT DUE WAS RESERVED FOR THE MOTHER. LATER, BY LETTER DATED JANUARY 7, 1946, YOU MADE CLAIM FOR THE BALANCE RESERVED FOR THE MOTHER, SAYING THAT SHE LEFT YOU AND YOUR SIX CHILDREN, INCLUDING THE DECEDENT, MORE THAN FIVE YEARS PREVIOUSLY AND THAT YOU DID NOT KNOW HER ADDRESS. BY LETTER DATED FEBRUARY 19, 1946, THE CLAIMS DIVISION ADVISED YOU THAT UNDER THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED BY THE ACT OF DECEMBER 7, 1944, 58 STAT. 795, THEN GOVERNING THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE THE ESTATES OF DECEASED PERSONNEL OF THE ARMY, THE FATHER AND MOTHER WERE ENTITLED TO EQUAL SHARES OF THE ESTATE, IN THE ABSENCE OF A CLAIM FROM A LEGAL REPRESENTATIVE OF THE ESTATE, AND IF THE DECEDENT WAS NOT SURVIVED BY A WIDOW OR CHILD.

IN YOUR PRESENT COMMUNICATION YOU REPEAT YOUR PREVIOUS STATEMENTS AS TO THE MOTHER LEAVING YOU AND THE CHILDREN AND THAT YOU HAVE NOT BEEN ABLE TO LOCATE HER. YOU ASK WHAT WILL BE DONE WITH THE BALANCE DUE AND YOU EXPRESS THE BELIEF THAT THE DECEDENT'S PATERNAL GRANDMOTHER, HAVING RAISED THE CHILDREN, IS ENTITLED TO THE AMOUNT DUE.

AS YOU WERE ADVISED IN THE LETTER OF FEBRUARY 19, 1946, THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF DECEMBER 7, 1944, PERMITTED THE ACCOUNTING OFFICERS, WHERE NO DEMAND WAS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF A DECEDENT'S ESTATE AND HE WAS NOT SURVIVED BY A WIDOW OR CHILD, TO ALLOW THE AMOUNT FOUND DUE TO THE FATHER AND MOTHER IN EQUAL PARTS, UNLESS AT THE TIME OF SETTLEMENT EITHER THE FATHER OR MOTHER BE DEAD, IN WHICH CASE THEN TO THE ONE SURVIVING. THE SAME IS TRUE UNDER THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH AMENDED THE ACTS OF JUNE 30, 1906, AND DECEMBER 7, 1944, AND NOW GOVERNS THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE ESTATES OF DECEASED ARMY PERSONNEL WHO DIED PRIOR TO JANUARY 1, 1956.

AS TO THE PAYMENT OF THE REMAINING ONE-HALF SHARE TO THE DECEDENT'S GRANDMOTHER, YOU ARE ADVISED THAT A GRANDMOTHER DOES NOT COME WITHIN ANY OF THE CLASSES OF HEIRS PERMITTED BY ANY OF THE CITED ACTS TO SHARE IN THE DISTRIBUTION OF THE AMOUNT DUE THE ESTATE OF A DECEASED MEMBER OF THE ARMY. WHILE THE GRANDMOTHER MAY HAVE STOOD IN THE RELATIONSHIP OF A FOSTER PARENT OF YOUR LATE SON, SUCH STATUS DOES NOT ESTABLISH LEGAL RELATIONSHIP OF PARENT AND CHILD OR OTHERWISE MAKE HER ELIGIBLE TO RECEIVE FROM THE GOVERNMENT THE AMOUNT DUE HIS ESTATE. THE LAW HAS BEEN THE SAME IN THAT RESPECT SINCE THE ACT OF JUNE 30, 1906, AND IT LONG HAS BEEN HELD THAT A FOSTER PARENT IS NOT A LEGAL HEIR WITHIN THE MEANING OF THAT ACT AS AMENDED, AND IS NOT ENTITLED TO THE AMOUNT DUE THE DECEDENT'S ESTATE EXCEPT IN CERTAIN CASES WHERE IT IS AFFIRMATIVELY ESTABLISHED THAT THE CLAIMING FOSTER PARENT HAD LEGALLY ADOPTED THE DECEDENT AND BECAME HIS LEGAL HEIR. SINCE IT DOES NOT APPEAR THE THE GRANDMOTHER LEGALLY ADOPTED YOUR LATE SON, THERE IS NO LEGAL BASIS FOR ALLOWING HER THE BALANCE DUE AS ARREARS OF PAY.

FURTHERMORE, SINCE THE MOTHER HAS NOT MADE CLAIM FOR THE AMOUNT RESERVED FOR HER, IT APPEARS THAT SHE COULD NOT NOW BE ALLOWED THAT AMOUNT IN HER OWN RIGHT SINCE THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES SHALL BE FOREVER BARRED UNLESS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER SUCH CLAIM FIRST ACCRUED.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD BEFORE US, THERE IS NO FURTHER ACTION WE MAKE TAKE IN THE MATTER AND THE BALANCE DUE MUST BE RETAINED IN THE TREASURY OF THE UNITED STATES.

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