B-86960, JAN. 27, 1964

B-86960, JAN. 27, 1964

TO MISS AURORA GERONIMO:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 20, 1963, WITH ENCLOSURES, RELATIVE TO THE CLAIM OF YOUR FATHER, JUAN GERONIMO, NOW DECEASED, FOR ARREARS OF PAY IN THE CASE OF THE LATE JOHN NEVIS, CHIEF GUNNER'S MATE, UNITED STATES NAVY (RETIRED).

BY SETTLEMENT DATED OCTOBER 25, 1948, OUR CLAIMS DIVISION DISALLOWED MR. GERONIMO'S CLAIM, WHICH WAS ASSERTED ON THE BASIS THAT HE WAS THE NEXT OF KIN OF THE LATE JOHN NEVIS, FOR THE REASON THAT HE WAS NOT AN HEIR OF THE DECEDENT WITHIN THE PROVISIONS OF THE ACT OF FEBRUARY 25; 1946, 60 STAT. 30, AND THAT THE EVIDENCE SUBMITTED DID NOT ESTABLISH THAT HE WAS HIS LEGALLY ADOPTED SON. BY DECISION DATED JULY 25, 1949, B-86960, THAT SETTLEMENT WAS SUSTAINED AND IT WAS EXPLAINED THAT, IN THE ABSENCE OF A CLAIM BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, WE WERE AUTHORIZED BY THE ACT OF FEBRUARY 25, 1946, TO ALLOW ARREARS OF PAY DUE JOHN NEVIS ONLY TO A PERSON WHO WAS WITHIN THE CLASSES OF PERSONS DESIGNATED UNDER THE ACT.

WITH YOUR PRESENT LETTER YOU ENCLOSED A COPY OF A STATEMENT SIGNED BY JOHN NEVIS, DATED OCTOBER 10, 1942, IN WHICH HE AUTHORIZED MR. JUAN GERONIMO TO REPRESENT HIM AT ANY OFFICE CONCERNING HIS RE-REGISTRATION AS AN AMERICAN CITIZEN, TOGETHER WITH A COPY OF A STATEMENT DATED MARCH 10, 1945, IN WHICH HE AUTHORIZED MR. GERONIMO TO REPRESENT HIM IN ANY TRANSACTION INVOLVING HIS RELATION TO THE UNITED STATES NAVY AND CIVIL SERVICE. THE LATTER DOCUMENT WAS SUBMITTED BY YOUR FATHER IN CONNECTION WITH HIS CLAIM AND HAS ALREADY BEEN CONSIDERED BY THIS OFFICE.

IT APPEARS TO BE YOUR VIEW THAT THESE DOCUMENTS CONSTITUTED MR. GERONIMO AS THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF JOHN NEVIS AND ESTABLISHED HIS RIGHT TO THE ARREARS OF PAY DUE THE LATE JOHN NEVIS AS A RETIRED MEMBER OF THE UNITED STATES NAVY. ALSO, IT APPEARS THAT YOU BELIEVE THAT SINCE YOUR FATHER IS NOW DECEASED YOU MAY BE SUBSTITUTED FOR HIM AS ADMINISTRATOR OF THE ESTATE AND CLAIM THE MONIES IN THAT CAPACITY.

THE TERM "DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE" AS USED IN THE ACT OF FEBRUARY 25, 1946, AND SIMILAR STATUTES, CONSISTENTLY HAS BEEN CONSTRUED AND APPLIED AS HAVING REFERENCE TO THE PERSON CONSTITUTED ADMINISTRATOR OR EXECUTOR BY THE PROPER COURT. BRIGGS V. WALKER, 171 U.S. 466, 471; THOMPSON ADM-R V. UNITED STATES, 20 CT.CL. 276. SINCE YOUR FATHER WAS NOT APPOINTED ADMINISTRATOR OF THE ESTATE OF JOHN NEVIS BY A PROPER COURT HAVING PROBATE JURISDICTION AT THE PLACE WHERE THE DECEDENT WAS DOMICILED ON THE DATE OF HIS DEATH, WE ARE WITHOUT AUTHORITY TO RECOGNIZE A CLAIM PRESENTED BY HIM AS ADMINISTRATOR.

HOWEVER, IT MAY BE POINTED OUT THAT AN EXECUTOR OR ADMINISTRATOR ACTS IN A REPRESENTATIVE CAPACITY AS A PERSONAL REPRESENTATIVE OF THE DECEDENT AND THE CREDITORS, HEIRS, LEGATEES, OR DISTRIBUTEES. ROLLINS V. SHANER, 292 S.W. 419, 421; 33 C.J.S. EXECUTORS AND ADMINISTRATORS 142. ALSO, IT IS WELL SETTLED THAT MONIES DUE FROM THE UNITED STATES WILL NOT BE PAID TO AN ADMINISTRATOR WHO HAS NO INTEREST EITHER AS HEIR OR CREDITOR, OR AS REPRESENTING HEIRS OR CREDITORS. HENCE, EVEN IF YOUR FATHER HAD BEEN APPOINTED ADMINISTRATOR OF THE ESTATE OF JOHN NEVIS BY A PROPER COURT, SINCE THE RECORD SHOWS THAT THERE WERE NO HEIRS OR CREDITORS INVOLVED IN THE ESTATE IT APPEARS THAT ANY CLAIM PRESENTED BY HIM AS THE DULY APPOINTED REPRESENTATIVE OF THE ESTATE WOULD HAVE RESULTED IN A DENIAL OF THE CLAIM.

IN THESE CIRCUMSTANCES IT APPEARS THAT NEITHER YOUR FATHER, NOR YOU AS HIS HEIR; WOULD HAVE ANY RIGHT IN THE ESTATE OF JOHN NEVIS.