May 26, 2004

In the Matter of a Mail Dispute Between

 

LOIS M. MELLBERG

and

AUDREY S. TAYLOR and EARLINE F. HEMMING

P.S. Docket No.  MD 04-51                         

 

APPEARANCE FOR DISPUTANT LOIS M. MELLBERG:

Lois M. Mellberg

5151 West Stoll Road
Lansing, MI  49721-2135

APPEARANCE FOR DISPUTANTS AUDREY S. TAYLOR and EARLINE F. HEMMING:

Timothy P. MacArthur, Esq.
1005 South Main Street
Cheboygan, MI  49721-2221

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) Section 616.21, 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 Allen H. Penoyer, at 2201 East State Street, Cheboygan, MI 49721-2135.  The Cheboygan Postmaster is currently holding the mail.

All three parties filed written statements, along with other documents, but only Ms. Hemming’s reply statement was sworn, as required by the Rules of Practice, 39 C.F.R. §965.5.  The following findings of fact are based on all the material submitted by the parties, including the material forwarded by the United States Postal Service Law Department, Chicago Office.

FINDINGS OF FACT

            1.  Allen H. Penoyer died on December 28, 2003.  The disputants are his daughters, with Audrey Taylor and Earline Hemming aligned together against Lois Mellberg.

            2.  On September 11, 2001, Allen H. Penoyer executed a will, listing eight children and naming the three disputants, jointly, as his personal representatives.  Also on September 11, 2001, he executed a general power of attorney, appointing Ms. Mellberg as his attorney-in-fact.  The power of attorney also stated that if Ms. Mellberg was unable or unwilling to act, then Ms. Taylor was appointed First Successor Attorney and Ms. Hemming was appointed Second Successor Attorney. (Attached to Law Department forwarding letter).

            3.  Mr. Penoyer also created a Revocable Living Trust on September 11, 2001, naming himself as the Grantor and Trustee.  He also named Ms. Mellberg, Ms. Taylor, and Ms. Hemming as Joint Successor Trustees.  A provision of the trust states that, “Following the death of the Grantor, the Trust continues or is distributed in whole or in part for the benefit of other named Beneficiaries according to the terms of the Trust.”  (“Notarized Summary of Trust,” attached to Law Department forwarding letter).[1]

            4.  Allen H. Penoyer’s former residence, 2201 East State Street, is now vacant.  For some time after his death, Ms. Taylor and/or Ms. Hemming picked up mail that was delivered to 2201 East State Street.  (Law Department forwarding letter; Mellberg statement, April 26, 2004; Taylor statement, May 12, 2004; Hemming statement, May 17, 2004).

5.  Sometime in January 2004, Ms. Mellberg asked that her father’s mail be forwarded to her.  Ms. Taylor and Ms. Hemming asked that the mail continue to be delivered to their father’s address and that they would pick it up there, thus precipitating this mail dispute.

            6.  On February 20, 2004, attorney Timothy MacArthur wrote to the Cheboygan Postmaster stating his opinion that mail could not be delivered to any of the trustees unless all three agreed.  He also stated that, on behalf of Ms. Taylor and Ms. Hemming, he intended to “register the trust” with the Probate Court, and asked that the mail be held until the Probate Court acted.  (Letter attached to Law Department forwarding letter).[2]

            7.  Postal Operations Manual (POM 9, July 2002) §612.41 provides as follows:

 

Mail addressed to deceased persons should be delivered as addressed.  The mail may be received at the address of the deceased by anyone who would normally receive the addressee’s mail at that address.  If, after 10 days, there is evidence that the mail is not being picked up, it should be treated as undeliverable.

 

            8.  The POM also states that mail may be forwarded to a different address at the request of an appointed executor or administrator.  (POM §612.42).   

DECISION

As a general rule, the authority of an agent to act under a power of attorney is automatically revoked by the death of the principal.  Therefore, any claim Ms. Mellberg has to the decedent’s mail cannot be based on the power of attorney.

For two reasons, I find that Ms. Taylor and Ms. Hemming must prevail.  First, because Ms. Mellberg has demonstrated no greater claim to the mail than have her opponents, the general rule in POM §612.41 should be followed, i.e., the mail should be delivered as addressed.

            Second, Section 700.7406(4) of the Michigan Statutes pertaining to trust administration includes a provision that, if no specific provision in the trust governs, acts and duties of the trustees shall be performed “by a majority of the trustees if there are more than 2.”  From what has been filed in this case, it is not clear that the trust contains any direction on how conflicts among the trustees are to be resolved.[3]  Therefore, the above quoted §700.7406(4) supplies a sufficient answer.  Because Ms. Taylor and Ms. Hemming constitute a majority of the trustees, they may direct the delivery of the mail.

This decision deals only with delivery of mail.  It does not determine ownership of anything contained in the mail.  If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order.  POM §616.3. 

The Judicial Officer should issue an Order to the Cheboygan Postmaster that mail addressed to Allen H. Penoyer, at 2201 East State Street, Cheboygan, MI 49721-2135 be delivered as directed by Audrey Taylor and Earline Hemming.

                                                                        Bruce R. Houston

                                                                        Chief Administrative Law Judge


[1] A complete copy of the Trust is not part of the record.  It appears that each of the disputants submitted excerpts that they believe support their position, but Ms. Mellberg disputes the authenticity of excerpts submitted by Ms. Taylor and Ms. Hemming.

[2] There is nothing in the file to show that this was done, or that there is any action pending in Probate Court.

[3] Ms. Taylor and Ms. Hemming filed a purported excerpt from the Trust containing a statement that the majority shall rule if there is a conflict.  In her reply, Ms. Mellberg states that this is false and that the trust contains no such provision.