B-154127, AUG. 28, 1964

B-154127, AUG. 28, 1964

TO MR. LOGAN ELLIOTT:

IN YOUR LETTER DATED JULY 25, 1964, CONCERNING YOUR CLAIM FOR 6 MONTHS' DEATH GRATUITY PAYABLE IN THE CASE OF HOMER WENDLE FANNIN WHO DIED ON OCTOBER 29, 1963, YOU STATED THAT YOU HAVE DECIDED NOT TO TAKE THE MATTER TO COURT AND TO ACCEPT OUR DECISION IN THE MATTER.

YOUR CLAIM IS ON THE BASIS THAT YOU STOOD IN LOCO PARENTIS TO THE DECEDENT FROM NOVEMBER 1952 TO MARCH 1954 WHEN HE RESIDED WITH YOU AND YOUR WIFE IN MANSFIELD, OHIO. IN SUPPORT OF YOUR CLAIM YOU HAVE FURNISHED SIGNED STATEMENTS FROM JOSEPH H. SEIBERT WHO RENTED THE PREMISES TO YOU AT 200 WAYNE STREET, MANSFIELD, OHIO, WHERE YOU ESTABLISHED YOUR HOME AND FROM ARCHIE WILSON WHO BOARDED IN YOUR HOME. IN OPPOSITION TO YOUR CLAIM, THERE IS BEFORE US FOR CONSIDERATION THE CLAIM OF YOUR MOTHER, MRS. LINA ELLIOTT. IN A STATEMENT FILED IN SUPPORT OF HER CLAIM, MRS. ELLIOTT ALLEGES THAT HOMER WENDLE FANNIN WAS BORN ON DECEMBER 26, 1935, AT PORTSMOUTH, OHIO; THAT HIS MOTHER DIED IN DECEMBER 1940 AND WITHIN 2 WEEKS HIS FATHER, BALLARD FANNIN (NOW DECEASED) BROUGHT HIM TO HER HOME AND THAT SHE RAISED HIM ALONG WITH YOU AND HER OTHER CHILDREN UNTIL HE BECAME SELF- SUPPORTING. THIS IS SUBSTANTIATED BY LETTERS FROM YOUR BROTHERS, WALTER, WENCEL, AND WENDELL ELLIOTT. ALSO, THE RECORD SHOWS THAT AFTER FULL INVESTIGATION OF THE MATTER THE ADMINISTRATOR OF VETERANS' AFFAIRS DETERMINED THAT YOUR PARENTS STOOD IN LOCO PARENTISTO THE DECEDENT AND AUTHORIZED AN AWARD TO THEM FOR COMPENSATION AND DEATH BENEFITS.

THE 6 MONTHS' DEATH GRATUITY IS PAYABLE UNDER THE PROVISIONS OF 10 U.S.C. 1475, ET SEQ. CLAUSES (3) AND (4) OF SUBSECTION (A) OF SECTION 1477 PROVIDE FOR PAYMENT TO A DECEASED MEMBER'S PARENTS OR PERSONS IN LOCO PARENTIS. SUBSECTION (C) PROVIDES THAT CLAUSES (3) AND (4) OF SUBSECTION (A), SO FAR AS THEY APPLY TO PARENTS AND PERSONS IN LOCO PARENTIS, INCLUDE FATHERS AND MOTHERS THROUGH ADOPTION, AND PERSONS WHO STOOD IN LOCO PARENTIS TO THE DECEDENT FOR A PERIOD OF NOT LESS THAN ONE YEAR AT ANY TIME BEFORE HE ACQUIRED A STATUS IN THE ARMED FORCES DESCRIBED IN SECTION 1475 OR 1476 OF TITLE 10. IT FURTHER PROVIDES THAT ONLY ONE FATHER AND ONE MOTHER, OR THEIR COUNTERPARTS IN LOCO PARENTIS, MAY BE RECOGNIZED IN ANY CASE, AND PREFERENCE SHALL BE GIVEN TO THOSE WHO EXERCISED A PARENTAL RELATIONSHIP ON THE DATE, OR MOST NEARLY BEFORE THE DATE, ON WHICH THE DECEDENT ENTERED THAT STATUS.

A PERSON STANDING IN LOCO PARENTIS TO A CHILD IS ONE WHO HAS PUT HIMSELF IN THE SITUATION OF A LAWFUL PARENT BY ASSUMING THE OBLIGATIONS INCIDENT TO THE PARENTAL RELATION, WITHOUT GOING THROUGH THE FORMALITIES NECESSARY TO A LEGAL ADOPTION. THOMAS V. UNITED STATES, 189 F.2D 494, 03; BOURBEAU V. UNITED STATES, 76 F.SUPP. 778, 779. ALSO, IT HAS BEEN HELD THAT ONE WHO THROUGH KINDNESS OR CHARITY OR OTHER MOTIVE HAS RECEIVED A CHILD INTO HIS FAMILY AND TREATS THE CHILD AS A MEMBER THEREOF, STANDS IN LOCO PARENTIS OR IN PLACE OF PARENTS SO LONG AS THE CHILD REMAINS IN HIS FAMILY. TROTTER V. POLLAN, 311 S.W.2D 723, 729. FURTHER, IT HAS BEEN HELD THAT THE EMANCIPATION OF A MINOR MEANS THE FREEING OF A CHILD FOR ALL THE PERIOD OF ITS MINORITY FROM THE CARE, CUSTODY, CONTROL AND SERVICE OF ITS PARENTS. WURTH V. WURTH, 313 S.W.2D 161, 164. ALSO, THAT AN INFANT IS EMANCIPATED WHEN HE WORKS FOR WAGES OR OTHERWISE SUPPORTS HIMSELF AND PAYS HIS BOARD AND OTHER EXPENSES WITH THE CONSENT OF THE PAYMENT, AND IF THE CHILD, AT THE TIME IS OF SUFFICIENT AGE AND PHYSICAL STRENGTH TO SUPPORT HIMSELF, HIS PARENT IS RELIEVED OF THE NECESSITY OF FURTHER CARING FOR HIM. SIMMONS V. STEWART, 248 S.W. 892.

IN YOUR LETTER DATED FEBRUARY 24, 1964, YOU STATE THAT HOMER AND YOUR WIFE WERE 16 AND YOU WERE 18 YEARS OF AGE WHEN HE CAME TO LIVE WITH YOU, AND YOU WERE HEAD OF THE HOUSEHOLD; THAT YOU OPENED A SMALL RESTAURANT WHICH HOMER AND YOUR WIFE MANAGED WHILE YOU WERE WORKING; THAT IN 1953 HOMER AND YOU BOTH WENT TO WORK FOR IDEAL ELECTRIC COMPANY IN MANSFIELD, OHIO; THAT HOMER ALSO WORKED FOR SHORT PERIODS OF TIME AT TOOL AND DIE COMPANY, AND AT HUMPHREYES MANUFACTURING COMPANY, IN MANSFIELD, OHIO, AND THAT HE WORKED AT THESE TWO PLACES WHILE YOU WERE LIVING AT 200 WAYNE STREET RIGHT AFTER HE CAME TO LIVE WITH YOU.

THE RECORD SHOWS THAT YOUR MOTHER RAISED YOUR COUSIN HOMER FROM THE TIME HE WAS 5 YEARS OLD AT LEAST UNTIL HE WAS ABLE TO WORK, AT WHICH TIME SHE RELINQUISHED PARENTAL CONTROL AND CONFERRED ON HIM THE RIGHT TO HIS OWN EARNINGS AND TO ACT ON HIS OWN RESPONSIBILITY. WHILE HE TOOK UP RESIDENCE WITH YOU AND YOUR WIFE THE EVIDENCE INDICATES THAT HE HAD ALREADY ACQUIRED THE STATUS WHICH YOU HAD ATTAINED OF AN EMANCIPATED MINOR. THEREFORE, EVEN THOUGH HE LIVED IN YOUR HOUSE AND YOU GAVE HIM SOME SUPPORT AND GUIDANCE, YOUR RELATIONSHIP WAS SIMILAR TO THAT OF AN OLDER BROTHER RATHER THAN THAT OF A PARENT. IT IS CONSIDERED IN THE CIRCUMSTANCES THAT YOU DID NOT STAND TOWARD HIM IN LOCO PARENTIS AND DID NOT ASSUME THE OBLIGATIONS INCIDENT TO A PARENTAL RELATIONSHIP.

SINCE THE LAW AUTHORIZES PAYMENT OF 6 MONTHS' DEATH GRATUITY TO PERSONS STANDING IN LOCO PARENTIS TO THE DECEDENT AND SINCE THE RECORD SHOWS THAT YOUR MOTHER EXERCISED A PARENTAL RELATIONSHIP TO THE DECEDENT MOST NEARLY BEFORE THE DATE ON WHICH HE ENTERED THE SERVICE AND THAT HE RECOGNIZED HER AS A PARENT, IT IS OUR VIEW THAT THE PRESENT RECORD APPEARS SUFFICIENT TO ESTABLISH THAT SHE STOOD IN LOCO PARENTIS TO HIM.

ACCORDINGLY, WE WILL ALLOW SETTLEMENT TO HER FOR THE 6 MONTHS' DEATH GRATUITY.