B-149683, JAN. 17, 1963

B-149683, JAN. 17, 1963

TO MRS. ROSE E. WINSTON:

REFERENCE IS MADE TO LETTER OF DECEMBER 5, 1962, WRITTEN IN YOUR BEHALF BY MR. WARREN G. REID CONCERNING THE ACTION TAKEN IN OUR LETTER TO YOU DATED SEPTEMBER 5, 1962, B-149683, WHICH DENIED YOU CLAIM FOR PAY DUE THE LATE CHARLEY HARRISON, UNITED STATES ARMY (RETIRED), AT THE DATE OF HIS DEATH, MARCH 13, 1962.

AS STATED IN OUR LETTER OF SEPTEMBER 5, 1962, IT APPEARS FROM THE RECORD BEFORE US THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW, DESCENDANT, PARENT, BROTHER OR SISTER OR THEIR DESCENDANTS AND THAT THERE IS DUE HIS ESTATE THE SUM OF $115.54, REPRESENTING RETIRED PAY FOR THE PERIOD MARCH 1 TO 13, 1962. IN OUR LETTER WE QUOTED THE PERTINENT PROVISIONS OF 10 U.S.C. 2771 AND WE SAID THAT WHERE THERE HAS BEEN NO APPOINTMENT OF A LEGAL REPRESENTATIVE AND THE DECEDENT IS NOT SURVIVED BY A SPOUSE, DESCENDANT, OR PARENT, THE STATUTE MAKES NO PROVISION IN SUCH CIRCUMSTANCES FOR PAYMENT OF THE AMOUNT DUE YOU AS A FRIEND OF THE DECEDENT. WE ALSO SAID THAT NOTWITHSTANDING MR. HARRISON AGREED IN MAY 1950 FOR YOU TO LOOK AFTER HIS BUSINESS AFFAIRS AND PERSON, AND THE FACT THAT YOU WERE NAMED AS THE PRINCIPAL DEVISEE IN HIS WILL DATED APRIL 9, 1951, YOU DID NOT QUALIFY AS HIS DESIGNATED BENEFICIARY WITHIN THE CONTEMPLATION OF THE CITED STATUTORY PROVISIONS AND REGULATIONS. CONCLUDED THAT SHOULD YOU DEEM IT EXPEDIENT TO HAVE THE WILL PROBATED AND YOURSELF APPOINTED EXECUTRIX, THE AMOUNT DUE COULD BE ALLOWED UPON RECEIPT OF YOUR CLAIM IN THAT CAPACITY ACCOMPANIED BY A DULY AUTHENTICATED COPY OF CERTIFICATE OF YOUR APPOINTMENT.

MR. REID STATES IN HIS LETTER THAT IT WOULD NOT BE PRACTICAL FOR YOU TO FILE A PETITION FOR PROBATE OF MR. HARRISON'S WILL SINCE THE COST OF FILING THE PETITION, PUBLICATION FOR NOTICE OF CREDITORS, PREMIUM FOR A SURETY BOND AND ATTORNEYS' FEES, EVEN THOUGH ONLY NOMINAL, WOULD EXCEED THE AMOUNT OF THE CLAIM. HE EXPRESSES THE VIEW, HOWEVER, THAT YOU MIGHT QUALIFY UNDER 10 U.S.C. 2771 (A) (6) AS A "PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER.' MR. REID STATES THAT AS SOLE BENEFICIARY UNDER A VALID HOLOGRAPHIC WILL, THERE IS NO QUESTION THAT YOU ARE THE PERSON ENTITLED TO TAKE.

AS A GENERAL RULE A WILL IS WITHOUT LEGAL EFFECT UNTIL PROBATED. C.J.S. WILLS, SECTION 310A. SECTION 331, PROBATE CODE ANNOTATED OF THE STATE OF CALIFORNIA, PROVIDES THAT A HOLOGRAPHIC WILL MAY BE PROVED IN THE SAME MANNER AS OTHER PRIVATE WRITINGS. WHILE SECTION 630 OF THE CALIFORNIA PROBATE CODE PROVIDES THAT IN CERTAIN CASES INVOLVING SMALL AMOUNTS,"THE SURVIVING SPOUSE, THE CHILDREN, LAWFUL ISSUE OF DECEASED CHILDREN, THE PARENT, THE BROTHER OR SISTER OF THE DECEDENT, OR THE GUARDIAN OF THE ESTATE OF ANY MINOR OR INSANE OR INCOMPETENT PERSON BEARING SUCH RELATIONSHIP TO THE DECEDENT, IF SUCH PERSON HAS A RIGHT TO SUCCEED TO THE PROPERTY OF THE DECEDENT, OR IS THE SOLE BENEFICIARY UNDER THE LAST WILL AND TESTAMENT OF THE DECEDENT, MAY, WITHOUT PROCURING LETTERS OF ADMINISTRATION, OR AWAITING THE PROBATE OF THE WILL, COLLECT ANY MONEY DUE THE DECEDENT," IT IS OUR VIEW THAT UNDER THIS SECTION THE PERSON WHO MAY CLAIM AS A SOLE BENEFICIARY UNDER THE LAST WILL AND TESTAMENT OF A DECEDENT IS LIMITED TO THOSE SPECIFIED IN THE STATUTE. WHILE WE RECOGNIZE THE HIGH REGARD IN WHICH YOU WERE HELD BY THE DECEDENT, WE FIND NOTHING IN THE SUCCESSION STATUTE AS SET FORTH IN THE PROBATE CODE OF THE STATE OF CALIFORNIA, UNDER WHICH A "BEST FRIEND AND GUARDIAN," QUALIFIES TO TAKE IN THE LINE OF SUCCESSION. YOUR ATTORNEY HAS NOT CITED ANY CASES OR STATUTORY PROVISIONS WHICH WOULD JUSTIFY A CONTRARY CONCLUSION. FOR THE REASONS STATED, WE MUST CONCLUDE THAT YOU DO NOT QUALIFY AS A PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER AS CONTEMPLATED BY 10 U.S.C. 2771 (A) (6), AND PAYMENT OF YOUR CLAIM MAY NOT BE AUTHORIZED ON THAT BASIS.