Weaver v. Sperry

WILSON, J.

This is an appeal from an order settling objections to final account of administrator and decree of distribution. There are also purported appeals from (1) the “order denying motion to set aside and vacate order settling objections to final account of administrator and decree of distribution” and (2) the order denying motion for a new trial, which orders are nonappealable.

Decedent at the time of his death was in active service in the United States Navy. He was officially placed upon a “missing status” in 1942, and was subsequently declared dead, the presumptive date of his death being July 25, 1945. On that date there was accrued pay standing to his credit in the amount of $5,729.20. Thereafter decedent’s mother, appellant Venice Kevil, filed her claim with the Navy Department and there was distributed to her, pursuant to section

[390]

941a of title 34, U.S.C.A

*

(Act of Feb. 25, 1946, 60 Stat. 30) the sum of $2,864.60, representing one half of the accrued pay. She was informed that the other half was reserved for the surviving father and that the balance could be allowed to a duly appointed legal representative of her son’s estate, regardless of the status of the father. After receiving this communication Mrs. Kevil requested her brother, appellant Carl D. Weaver, to petition for letters of administration. Letters were issued to him on June 10, 1947. The inventory and appraisement was filed on October 5, 1948, showing the total assets in the estate as cash in the sum of $2,864.60. This sum represented the remaining balance of the accrued pay accredited to decedent which the administrator received from the government.

Decedent’s father, who resides in Virginia, retained respondent to represent him and executed an assignment of his interest in the estate to respondent. The latter advised the administrator that decedent’s mother had already received one half of the estate directly from the Navy Department and requested that he make a demand upon her for the amount she had received and in the event she failed to remit that such amount be offset against her share of the estate in any petition for distribution.

Thereafter the administrator filed his first and final account alleging that the entire estate of decedent consisted of the sum of $2,864.60 and asked that the estate be divided one half to the mother and one half to the father. He failed to call the court’s attention to the fact that decedent’s mother had received a similar amount from the United States Navy. Respondent filed objections alleging that the decedent at the time