United States Postal Service(TM)
Administrative Law Judges 


In the Matter of a Mail Dispute  	) June 7, 1996             
Between                        		)
                               		)
MIRENDA KIRKWOOD              		)
CURTIS GATES                     	)
                               		)
       and                     		)
                                 	)
HERBERT L. GATES                 	) P.S. Docket No. MD 96-135

APPEARANCE FOR MIRENDA KIRKWOOD:	Mirenda Kirkwood
					3517 Victor Avenue
					Oakland, CA  94519-1528

APPEARANCE FOR HERBERT L. GATES:	None.

INITIAL DECISION

This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book §153.72, which requires the chief field counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Theresa Gates, 1454 Thomas Avenue, San Francisco, CA 94124-2742. The mail is currently being held by the San Francisco Postmaster.

Mirenda Kirkwood filed a sworn statement as required by 39 C.F.R. §965.5. Herbert Gates did not file a submittal. The following findings of fact are based on Ms. Kirkwood's submission and on documents previously submitted to the postmaster, which were included in the file referred to the Judicial Officer.

FINDINGS OF FACT

1. Theresa Gates, who resided at 1454 Thomas Avenue in San Francisco, died on September 3, 1995. She had executed a will on April 23, 1994, that named Herbert Gates, her nephew, as the secondary executor. However, Ms. Gates amended the will on August 10, 1995, by a codicil that named Mirenda Kirkwood as the executrix and omitted Mr. Gates as a secondary executor.

2. On January 20, 1995, Ms. Gates had executed a durable power of attorney naming Herbert Gates as her attorney-in-fact. However, that designation was specifically revoked when, on August 17, 1995, Ms. Gates executed a durable power of attorney identifying Ms. Kirkwood and Curtis Gates as co-attorneys-in-fact.

3. Postal Service regulations provide that mail addressed to a deceased person may be forwarded to the address of an appointed executor or administrator. Domestic Mail Manual D042.2.4.

CONCLUSIONS OF LAW

1. Section 965.7 of 39 C.F.R. provides that a party who fails to file the submittal required by §965.5 may be held in default. Herbert Gates, having failed to make the required submission, is in default. Based on that default, the disputed mail may be delivered as requested by Mirenda Kirkwood.

2. Additionally, the record reflects that Ms. Kirkwood is the executrix of Theresa Gates' will, and, under Postal Service regulations, she may direct delivery of the decedent's mail.

3. Herbert Gates, at some time before Ms. Gates' death, was her attorney-in-fact and secondary executor under her will, but both of those designations were revoked by Ms. Gates before her death. The record reflects no basis for allowing Herbert Gates to control delivery of mail addressed to Ms. Gates.

4. Resolution of this dispute determines only the right to direct delivery of the mail addressed to Ms. Gates at the disputed address. It does not determine the question of ownership of the mail. If Ms. Kirkwood receives mail that is clearly intended for Herbert Gates, she must assure that it is promptly delivered to him.

5. The attached mail delivery order should be issued. 

						Norman D. Menegat
						Administrative Judge