B-141697, MAR. 7, 1960

B-141697, MAR. 7, 1960

TO MR. A. SIMPSON WILLIAMS, JR., C/O MESSERS. DAVIS, PARKERSON AND WILLIAMS, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1959, AND ENCLOSURE, AND TO YOUR LETTERS OF DECEMBER 17, 1959, AND JANUARY 13, 1960, CONCERNING THE PAYMENT OF ARREARS OF RETIRED PAY DUE IN THE CASE OF THE LATE JOHN FULMER BRIGHT, COLONEL, NATIONAL GUARD OF THE UNITED STATES (RETIRED), WHO DIED DECEMBER 29, 1953. ALSO, THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 24, 1960.

BY LETTER DATED OCTOBER 15, 1959, YOU TRANSMITTED TO US YOUR APPLICATION (DEPARTMENT OF THE ARMY, FINANCE DEPARTMENT FORM NO. 14) DATED THE SAME DATE, AS EXECUTOR AND RESIDUARY LEGATEE OF MARY BRIGHT WILLIAMS, DECEASED SISTER OF THE LATE OFFICER, FOR THE ARREARS OF RETIRED PAY DUE. YOU CERTIFIED IN THE APPLICATION THAT THE DECEASED OFFICER WAS NOT SURVIVED BY A WIDOW, DESCENDANTS, FATHER OR MOTHER, BUT THAT HE WAS SURVIVED BY TWO SISTERS, SALLIE BRIGHT MOUNTCASTLE, AND HAZEL BRIGHT WINGFIELD, WHO WERE LIVING ON THE DATE OF THE APPLICATION, AND BY ANOTHER SISTER, MARY BRIGHT WILLIAMS, WHO WAS YOUR MOTHER AND WHO DIED SEPTEMBER 15, 1957. SETTLEMENT DATED NOVEMBER 17, 1959, OF OUR CLAIMS DIVISION, YOU WERE ALLOWED, AS SON OF MARY BRIGHT WILLIAMS, THE SUM OF $951.86, REPRESENTING ONE-THIRD OF THE TOTAL AMOUNT OF $2,855.58 FOUND DUE THE ESTATE OF THE LATE OFFICER AS ARREARS OF RETIRED PAY. YOU WERE ADVISED THAT THE REMAINING SHARES WERE RESERVED FOR THE TWO SURVIVING SISTERS OF THE DECEASED OFFICER PENDING THE RECEIPT OF THEIR CLAIMS FOR SUCH SHARES.

IN YOUR RECENT COMMUNICATIONS YOU SAY THAT BY LETTER DATED DECEMBER 22, 1958, ADDRESSED TO YOUR MOTHER, THE ADJUTANT GENERAL OF THE ARMY ADVISED THAT THE DECEASED OFFICER HAD DESIGNATED HER AS HIS BENEFICIARY AND NEXT OF KIN. YOU TRANSMITTED A COPY OF THE WILL OF THE DECEASED OFFICER APPOINTING HIS SISTER, MARY DAVIES (BRIGHT) WILLIAMS, AND THE FIRST AND MERCHANTS NATIONAL BANK OF RICHMOND, RICHMOND, VIRGINIA, AS EXECUTORS. YOU REFER TO ARTICLE XI OF THE WILL, WHEREIN THE TESTATOR GAVE, DEVISED AND BEQUEATHED TO THE FIRST AND MERCHANTS NATIONAL BANK OF RICHMOND, AS TRUSTEE, ALL THE RESIDUE OF HIS ESTATE, TO BE HELD AND INVESTED BY THE TRUSTEE, THE FUND TO BE KNOWN AS "THE CHILDREN'S MILK FUND.' YOU SAY YOU ARE HOLDING CHECK NO. 3,927,740, DATED DECEMBER 7, 1959, DRAWN ON THE TREASURER OF THE UNITED STATES PURSUANT TO THE SETTLEMENT OF NOVEMBER 17, 1959, AND ASK WHETHER THE TOTAL AMOUNT OF THE ARREARS OF RETIRED PAY ($2,855.58), PASSES TO YOU AS HEIR AND NEXT OF KIN OF MARY BRIGHT WILLIAMS OR TO THE TRUSTEE BANK UNDER ARTICLE XI OF THE DECEASED OFFICER'S WILL.

AT THE TIME OF THE DEATH OF COLONEL BRIGHT, THE SETTLEMENT OF THE ACCOUNTS OF DECEASED MEMBERS OF THE ARMY WAS GOVERNED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 10 U.S.C. 868 (1952 EDITION). THAT ACT PROVIDED, IN MATERIAL PART, AS FOLLOWS:

"IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE ARMY, 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 IS 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 STIRPES. * * *"

SIMILAR PROVISIONS GOVERNING THE PAYMENT OF AMOUNTS DUE DECEASED MEMBERS OF THE ARMY WHO DIED BEFORE JANUARY 1, 1956, ARE NOW CONTAINED IN SECTION 29 OF PUBLIC LAW 85-861, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1563. THUS, IT WILL BE SEEN THAT, IN THE ABSENCE OF A CLAIM FROM A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEDENT, AND WHERE THE DECEDENT IS NOT SURVIVED BY A WIDOW, DESCENDANTS, FATHER OR MOTHER, THE AMOUNT DUE MAY BE ALLOWED TO BROTHER AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS SURVIVING "AT THE DATE OF SETTLEMENT.' WHILE CERTAIN LAWS OF THE UNITED STATES PERMIT THE DESIGNATION OF A BENEFICIARY FOR THE PAYMENT OF CERTAIN BENEFITS SUCH AS THE SIX MONTHS' DEATH GRATUITY (10 U.S.C. 1952 ED., 903) IN THE CASE OF MEMBERS OF THE ARMED FORCES WHO DIE WHILE ON ACTIVE DUTY, THE ACT OF FEBRUARY 25, 1946, CONTAINS NO PROVISION FOR PAYMENT OF ARREARS OF PAY, INCLUDING RETIRED PAY, TO A DESIGNATED BENEFICIARY. HENCE, EVEN THOUGH THE DECEASED OFFICER MAY HAVE DESIGNATED HIS SISTER (YOUR MOTHER) AS BENEFICIARY, SUCH DESIGNATION WOULD BE WITHOUT LEGAL EFFECT WITH RESPECT TO PAYMENT OF THE ARREARS OF RETIRED PAY DUE IN THIS CASE.

THE ACT OF FEBRUARY 25, 1946, MAKES NO PROVISION FOR PAYMENT TO THE LEGAL REPRESENTATIVE OF THE ESTATE OF AN HEIR WHO DIES PRIOR TO THE DATE OF SETTLEMENT AND, HENCE, THE SETTLEMENT OF NOVEMBER 17, 1959, ALLOWING YOU ONE-THIRD OF THE AMOUNT DUE, WAS ISSUED TO YOU AS THE SON OF THE DECEASED SISTER OF COLONEL BRIGHT, RATHER THAN AS THE LEGAL REPRESENTATIVE OF HER ESTATE. AT THE TIME OF THE ISSUANCE OF THE SETTLEMENT OF NOVEMBER 17, 1959, NO CLAIM HAD BEEN RECEIVED FROM THE LEGAL REPRESENTATIVE OF THE DECEASED OFFICER'S ESTATE--- NOR HAS SUCH A CLAIM YET BEEN PRESENTED--- AND THE RECORD THEN BEFORE US DID NOT DISCLOSE THAT ONE HAD BEEN APPOINTED. THEREFORE, THE SETTLEMENT WAS STRICTLY IN ACCORDANCE WITH THE 1946 ACT. IT MAY BE, HOWEVER, THAT UNDER THE LAWS OF THE COMMONWEALTH OF VIRGINIA, YOU MIGHT BE REQUIRED TO ACCOUNT TO THE LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED OFFICER FOR THE AMOUNT OF SUCH CHECK. IN THAT REGARD, YOU ARE ADVISED THAT THE COURTS HAVE HELD THAT THE ACT OF FEBRUARY 25, 1946, IS NOT A STATUTE OF DISTRIBUTION SO AS TO VEST A RIGHT IN THE PERSONS TO WHOM PAYMENT IS THERE AUTHORIZED TO RETAIN SUCH PAYMENTS AS THEIR OWN PROPERTY, BUT IS IN THE NATURE OF A "FACILITY OF PAYMENT" STATUTE, AND THAT THE PERSON WHO RECEIVES SUCH PAYMENT MUST ACCOUNT THEREFOR TO THE ADMINISTRATOR OF THE DECEDENT'S ESTATE. SEAGMAN V. SEAGMAN, 90 N.W.2D 617; CAMPBELL V. GLIPHANT, 206 S.W.2D 406; IN RE KEVIL'S ESTATE, 220 F.2D 555.

I TRUST THE FOREGOING SUFFICIENTLY EXPLAINS THE BASIS FOR OUR SETTLEMENT AND FURNISHES THE INFORMATION THAT YOU DESIRE.