A-18690, JULY 5, 1927, 7 COMP. GEN. 6

A-18690: Jul 5, 1927

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RENTAL AND SUBSISTENCE ALLOWANCES - ADOPTED CHILD THE BURDEN IS ON THE PERSON CLAIMING THE BENEFIT OF AN ALLEGED CONTRACT FOR ADOPTION TO ESTABLISH IT BY CLEAR. CONVINCING EVIDENCE AND THE FACT OF ADOPTION WILL NOT BE PRESUMED BUT MUST BE AFFIRMATIVELY PROVED BY THE PERSON CLAIMING ITS EXISTENCE. AN OFFICER OF THE NAVY IS NOT ENTITLED TO RENTAL AND SUBSISTENCE ALLOWANCES. WHERE THE PERSON DESIGNATED AS DEPENDENT IS AN INFANT. 1927: THERE WAS RECEIVED MAY 28. YOUR APPLICATION FOR A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY A CLAIM PRESENTED TO YOU BY LIEUT. IT APPEARS LIEUTENANT BUTLER WAS BORN IN SOUTH CAROLINA AUGUST 13. WAS APPOINTED TO THE NAVAL ACADEMY FROM TEXAS JULY 26. WAS APPOINTED AN ENSIGN FROM JUNE 3.

A-18690, JULY 5, 1927, 7 COMP. GEN. 6

RENTAL AND SUBSISTENCE ALLOWANCES - ADOPTED CHILD THE BURDEN IS ON THE PERSON CLAIMING THE BENEFIT OF AN ALLEGED CONTRACT FOR ADOPTION TO ESTABLISH IT BY CLEAR, COGENT, AND CONVINCING EVIDENCE AND THE FACT OF ADOPTION WILL NOT BE PRESUMED BUT MUST BE AFFIRMATIVELY PROVED BY THE PERSON CLAIMING ITS EXISTENCE. AN OFFICER OF THE NAVY IS NOT ENTITLED TO RENTAL AND SUBSISTENCE ALLOWANCES, AS AN OFFICER HAVING A DEPENDENT, WHERE THE PERSON DESIGNATED AS DEPENDENT IS AN INFANT, RESIDING WITH ITS NATURAL PARENTS, AND HAS APPARENTLY BEEN ADOPTED BY THE OFFICER AS HIS HEIR, IN CONFORMITY WITH CERTAIN STATE STATUTES, BUT FOR WHOSE CUSTODY AND SUPPORT THE OFFICER HAS NOT BECOME LIABLE, PURSUANT TO THE REMAINING PROVISIONS OF THE ADOPTION STATUTES OF THE STATE.

COMPTROLLER GENERAL MCCARL TO LIEUT. COMMANDER L. C. ENGLISH, UNITED STATES NAVY, JULY 5, 1927:

THERE WAS RECEIVED MAY 28, 1927, BY REFERENCE FROM THE SECRETARY OF THE NAVY, YOUR APPLICATION FOR A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY A CLAIM PRESENTED TO YOU BY LIEUT. (J.G.) HARRY ST. JOHN BUTLER, ATTACHED FOR DUTY ABOARD THE U.S.S. MEMPHIS, FOR RENTAL ALLOWANCE AT $60 PER MONTH AND AN ADDITIONAL SUBSISTENCE ALLOWANCE AT 60 CENTS PER DIEM, AS AN OFFICER HAVING A DEPENDENT, THE PERSON DESIGNATED AS DEPENDENT BEING AN ALLEGED ADOPTED CHILD.

IT APPEARS LIEUTENANT BUTLER WAS BORN IN SOUTH CAROLINA AUGUST 13, 1900; WAS APPOINTED TO THE NAVAL ACADEMY FROM TEXAS JULY 26, 1918; GRADUATED WITH HIS CLASS IN JUNE, 1922; AND WAS APPOINTED AN ENSIGN FROM JUNE 3, 1922. IT DOES NOT APPEAR HE HERETOFORE HAS CLAIMED INCREASED ALLOWANCES AS AN OFFICER HAVING A DEPENDENT AND THE SOLE BASIS OF HIS PRESENT CLAIM IS AN INSTRUMENT OF WHICH THE FOLLOWING IS CERTIFIED BY HIM TO BE A TRUE COPY:

* * * KNOW ALL MEN BY THESE PRESENTS:

THAT I, HARRY ST. JOHN BUTLER, A RESIDENT CITIZEN OF HARRIS COUNTY, IN THE STATE OF TEXAS, AND BEING MORE THAN TWENTY-ONE (21) YEARS OF AGE, HEREBY DECLARE THAT I HAVE ON THIS DATE AND DO BY THESE PRESENTS ADOPT AS MY LEGAL HEIR, WITH ALL OF THE RIGHTS AND PRIVILEGES PERTAINING TO SUCH STATUS, ROBERT PIERCE BUTLER, A MINOR FIFTEEN (15) YEARS OF AGE, WHO IS ALSO A RESIDENT CITIZEN OF THE CITY OF HOUSTON IN THE COUNTY OF HARRIS AND STATE OF TEXAS.

HEREBY VESTING IN THE SAID ROBERT PIERCE BUTLER EACH, EVERY AND ALL CLAIMS THAT CAN BE VESTED IN HIM BY ME IN CREATING THE STATUS OF MY LEGAL HEIR AS BEFORE STATED.

IN WITNESS WHEREOF I HAVE HEREUNTO SUBSCRIBED MY NAME AT PIRAEUS, IN THE REPUBLIC OF GREECE, ON THIS THE 26TH DAY OF FEBRUARY, A.D. 1927.

(S)HARRY ST. JOHN BUTLER.

(S) EDW. M. SENNOTT.

(S) A. DELLAS.

REPUBLIC OF GREECE,

COUNTY OF ALLICA, CITY OF PIRAEUS,

AMERICAN CONSULATE GENERAL.

BEFORE ME, CONSTANTINE M. CORAFA, A DULY AUTHORIZED VICE CONSUL LOCATED IN THE CITY OF PIRAEUS, IN REPUBLIC OF GREECE, ON THIS DAY PERSONALLY APPEARED HARRY ST. JOHN BUTLER, KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSES AND CONSIDERATIONS THEREIN EXPRESSED.

GIVEN UNDER MY HAND AND OFFICIAL SEAL THIS 26TH DAY OF FEBRUARY, 1927.

(SEAL.) CONSTANTINE M. CORAFA,

VICE CONSUL OF THE UNITED STATES OF AMERICA.

CONSUL SERVICE STAMP

$2.00

26 FEBRUARY, 1927

NOTARIAL ACT NO. 1126.

THE STATE OF TEXAS,

COUNTY OF HARRIS.

I, ALBERT TOWNSEND, CLERK OF THE COUNTY COURT OF HARRIS COUNTY, TEXAS, DO HEREBY CERTIFY THAT THE WITHIN INSTRUMENT WITH ITS CERTIFICATE OF AUTHENTICATION WAS FILED FOR REGISTRATION IN MY OFFICE ON APR. 6, 1927, AT 11:35 O-CLOCK A.M., AND DULY RECORDED ON APR. 7 AT 2:55 O-CLOCK P.M. IN VOL. 700, PAGE 223, OF RECORD OF DEEDS FOR SAID COUNTY.

WITNESS MY HAND AND SEAL OF OFFICE, AT HOUSTON, THE DAY AND DATE LAST ABOVE WRITTEN.

(SEAL.)

ALBERT TOWNSEND,

CLERK COUNTY COURT, HARRIS COUNTY, TEXAS.

BY (S) C. E. NEUHAUS.

THE BURDEN IS ON A PERSON CLAIMING A BENEFIT OF AN ALLEGED ADOPTION TO ESTABLISH IT BY CLEAR, COGENT, AND CONVINCING EVIDENCE. HONESTY OF PURPOSE IN THE ADOPTION IS A REQUISITE AND THE FACT OF ADOPTION WILL NEVER BE PRESUMED BUT MUST BE AFFIRMATIVELY PROVED BY THE PERSON CLAIMING ITS EXISTENCE. MCCOLPIN V. MCCOLPIN (TEXAS CIV.AP.) 75. S.W. 824; POWELL V. OTT (ID.), 146 S.W. 1019; 1 C.J. 1379, 1393, 1394.

ADOPTION WAS UNKNOWN TO THE COMMON LAW OF ENGLAND AND IN STATES WHOSE JURISPRUDENCE IS BASED SOLELY ON THAT SYSTEM IT CAN EXIST ONLY BY VIRTUE OF STATUTE. IN TEXAS IT WAS HELD UNDER A STATUTE ENACTED IN 1850 (ACTS 1850, PP. 36, 81; ARTS. 1 AND 2, COMPLETE TEXAS STATUTES), PRIOR TO ITS AMENDMENT IN 1907 AND 1920, THAT THE ADOPTED PARTY WAS GIVEN THE POSITION OF A CHILD ONLY SO FAR AS TO MAKE HIM THE HEIR OF THE ADOPTER, BUT THE ADOPTION PROCEEDING DID NOT CONSTITUTE HIM A MEMBER OF THE LATTER'S FAMILY WITH SUCH DUTIES AND PRIVILEGES AS THAT RELATION WOULD IMPLY. 1 CORPUS JURIS 1371; VOL. I, PP. 760-761, SCHOULER ON DOMESTIC RELATIONS, SIXTH EDITION; MCDONALD ET AL. V. TEXAS EMPLOYERS' INS. ASSOCIATION (1924), 267 S.W. 1074.

THE 1907 STATUTE (ACTS 30TH LEG. 1907, C. 47) PROVIDES THAT WHERE THE PARENT EXECUTES AN INSTRUMENT OF WRITING TRANSFERRING HIS PARENTAL AUTHORITY AND CUSTODY OVER THE CHILD TO THE ADOPTING PARTY OR (THE AMENDMENT OF JUNE 19, 1920, ACTS 36TH LEG. 1920, 3D CALLED SESSION, ADDS), WHERE THE PARENT HAS VOLUNTARILY ABANDONED SUCH CHILD AND LEFT THE SAME TO THE CARE OF OTHERS FOR A PERIOD OF AT LEAST THREE YEARS, OR VOLUNTARILY LEFT SUCH CHILD TO BE CARED FOR BY CHARITY, FOR AT LEAST THREE YEARS, IN EITHER EVENT, IF SUCH CHILD IS ADOPTED IN ACCORDANCE WITH THE PROVISIONS OF THE STATUTE, ALL PARENTAL AUTHORITY AND RIGHT TO THE CUSTODY OF THE CHILD ON THE PART OF THE NATURAL PARENTS ARE TRANSFERRED TO THE ADOPTER. VERNON'S ANNOTATED TEXAS CIVIL STATUTES, SUPPL. 1922, ARTS. 3 AND 4; MCDONALD ET AL. V. TEXAS EMPLOYERS' INS. ASSOCIATION (1924) 267 S.W. 1074.

IN THE CASE PRESENTED THE ALLEGED ADOPTED CHILD, ROBERT PIERCE BUTLER, IS A MALE INFANT 15 YEARS OF AGE, A NATURAL BROTHER OF THE OFFICER CLAIMING TO HAVE ADOPTED HIM, AND IS RESIDING WITH HIS OWN AND THE OFFICER'S PARENTS, ST. JOHN AND J. BLANCHE BUTLER, IN A HOME MAINTAINED BY THEM AT 519 SUL ROSS AVENUE, HOUSTON, TEX. WHERE ST. JOHN BUTLER, SR., IS EMPLOYED AS A SALESMAN AND WHERE OTHER ADULT MEMBERS OF THE FAMILY, RESIDING AT THE SAME ADDRESS, ARE ALSO EMPLOYED. IT DOES NOT APPEAR THE OFFICER'S PARENTS HAVE EVER ABANDONED THEIR MINOR SON, ROBERT, OR LEFT HIM TO BE CARED FOR BY CHARITY, OR THAT THEY HAVE TRANSFERRED THEIR PARENTAL AUTHORITY AND CUSTODY OVER HIM TO THEIR OFFICER SON, ST. JOHN, AND IT SEEMS HIGHLY IMPROBABLE THAT ANY COURT WOULD, UNDER THE CIRCUMSTANCES, RECOGNIZE THE VALIDITY OF SUCH A PROCEEDING, EVEN IF CONSUMMATED, CONSIDERING THE YOUTH OF THE OFFICER, THE FACT THAT HE HAS NO HOME OF HIS OWN, THAT HE IS ENGAGED IN A SERVICE OF COMPARATIVE HAZARD AND HAS BEEN ALMOST CONTINUOUSLY ON SEA DUTY SINCE HE WAS APPOINTED IN THE NAVY, BEING NOW ATTACHED FOR DUTY TO THE U.S.S. MEMPHIS.

IN THE CASE OF GEORGE O. KURTZ, WHO WAS CONVICTED IN THE BEXLER COUNTY (TEXAS) COURT FOR CRIMINAL CASES OF WILFULLY FAILING AND REFUSING TO PROVIDE FOR SUPPORT AND MAINTENANCE OF A MINOR CHILD, THE CONVICTION WAS REVERSED ON APPEAL, NOVEMBER 25, 1925, KURTZ V. STATE, 277 S.W. 685, THE COURT BEING OF THE OPINION THAT BEFORE ANY OBLIGATION TO SUPPORT A CHILD CAN BE ENJOINED UPON THE ADOPTER, WHEN THE CHILD'S NATURAL PARENTS ARE LIVING, THE ADOPTER MUST DO MORE THAN MERELY MAKE THE CHILD AN HEIR TO HIS ESTATE; BUT HE MUST BY HIS OWN ACT RELIEVE THE CHILD'S NATURAL PARENTS OF OBLIGATIONS TO SUPPORT IT AND MUST VOLUNTARILY ASSUME SUCH BURDEN HIMSELF; AND WHERE THE AUTHORITY AND CUSTODY WERE NOT TRANSFERRED IN WRITING THE ADOPTER CAN NOT BE PUNISHED FOR FAILING AND REFUSING TO SUPPORT THE CHILD.

IF THE INSTRUMENT EXECUTED BY LIEUTENANT (J.G.) BUTLER AND RECORDED IN THE HARRIS COUNTY COURT IS VALID FOR ANY PURPOSE, THEREFORE, OR WAS INTENDED TO BE AVAILED OF FOR ANY PURPOSE OTHER THAN TO OBTAIN ADDITIONAL ALLOWANCES FROM THE GOVERNMENT AT APPROXIMATELY $78 PER MONTH, WHICH HE IS CLAIMING, IT IS TO CONSTITUTE THE MINOR BROTHER, ROBERT, HIS LEGAL HEIR AND NOTHING MORE, UNDER ARTICLES 1 AND 2, COMPLETE TEXAS STATUTES, 1920, PROVIDING AS FOLLOWS:

ARTICLE 1 (1). ANY PERSON WISHING TO ADOPT ANOTHER AS HIS LEGAL HEIR MAY DO SO BY FILING IN THE OFFICE OF THE CLERK OF THE COUNTY COURT OF THE COUNTY IN WHICH HE MAY RESIDE A STATEMENT IN WRITING BY HIM SIGNED AND DULY AUTHENTICATED OR ACKNOWLEDGED, AS DEEDS ARE REQUIRED TO BE, WHICH STATEMENT SHALL RECITE IN SUBSTANCE, THAT HE ADOPTS THE PERSON NAMED THEREIN AS HIS LEGAL HEIR, AND THE SAME SHALL BE ADMITTED TO RECORD IN SAID OFFICE. ACTS 1850, PP. 36, 81; P.D. 30.

ART. 2 (2). * * * SUCH STATEMENT IN WRITING, SIGNED AND AUTHENTICATED OR ACKNOWLEDGED, AND RECORDED AS AFORESAID, SHALL ENTITLE THE PARTY SO ADOPTED TO ALL THE RIGHTS AND PRIVILEGES, BOTH IN LAW AND EQUITY, OF A LEGAL HEIR OF THE PARTY SO ADOPTING HIM; PROVIDED, HOWEVER, THAT IF THE PARTY ADOPTING SUCH HEIR, HAVE AT THE TIME OF SUCH ADOPTION, OR SHALL THEREAFTER HAVE, A CHILD BEGOTTEN IN LAWFUL WEDLOCK, SUCH ADOPTED HEIR SHALL IN NO CASE INHERIT MORE THAN ONE-FOURTH ( 1/4 ( OF THE ESTATE OF THE PARTY ADOPTING HIM. ACTS 1850, PP. 36, 81. P.D. 31.

CLEARLY, THE RELATIONSHIP BETWEEN LIEUTENANT (J.G.) BUTLER AND HIS BROTHER, ROBERT, HAS NONE OF THE ASPECTS OF THE RELATIONSHIP EXISTING BETWEEN PARENT AND CHILD, NOR OF THOSE COMMONLY OBSERVED BETWEEN ADOPTIVE PARENT AND ADOPTED CHILD. YOU ARE ADVISED, THEREFORE, THAT PAYMENT OF RENTAL AND INCREASED SUBSISTENCE ALLOWANCE TO THE OFFICER ON THE BASIS OF A DEPENDENT IS NOT AUTHORIZED.