A-19783, NOVEMBER 22, 1927, 7 COMP. GEN. 343

A-19783: Nov 22, 1927

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IS USED IN ITS ORDINARY OR POPULAR SENSE AND INCLUDES ONLY LEGITIMATE OFFSPRING BORN IN LAWFUL WEDLOCK OF AN OFFICER OF ANY OF THE SERVICES COVERED BY THE ACT. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT ENSIGN WILLIS HENRY PICKTON. SHOWS THAT "THE INCREASED ALLOWANCES * * * ARE CLAIMED BECAUSE OF: (2) ADOPTED CHILD 14 YEARS OLD * * * ROBERT JAMES PICKTON. THE NAVAL REGISTER SHOWS ENSIGN PICKTON WAS BORN AUGUST 15. IS THUS 25 YEARS OF AGE. THAT THE CHILD ADOPTED IS THE BROTHER OF CLAIMANT. ENSIGN PICKTON STATED UNDER OATH AS FOLLOWS: I HEREBY SWEAR OR AFFIRM THAT DURING THE FOUR YEARS I WAS IN ATTENDANCE AT THE NAVAL ACADEMY I CONTRIBUTED TWO HUNDRED AND 00/100 DOLLARS TO THE SUPPORT OF MY MOTHER AND MY YOUNGER SISTER AND MY TWO BROTHERS.

A-19783, NOVEMBER 22, 1927, 7 COMP. GEN. 343

RENTAL ALLOWANCE - TRANSPORTATION - ADOPTED CHILD OF NAVAL OFFICER THE WORD "CHILDREN" IN SECTIONS 4 AND 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627 AND 631, IS USED IN ITS ORDINARY OR POPULAR SENSE AND INCLUDES ONLY LEGITIMATE OFFSPRING BORN IN LAWFUL WEDLOCK OF AN OFFICER OF ANY OF THE SERVICES COVERED BY THE ACT.

COMPTROLLER GENERAL MCCARL TO LIEUT. M. F. TALBOT, UNITED STATES NAVY, NOVEMBER 22, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 24, 1927, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT ENSIGN WILLIS HENRY PICKTON, UNITED STATES NAVY, WITH RENTAL ALLOWANCE AS AN OFFICER WITH DEPENDENTS. HIS CERTIFICATE ON S. AND A. FORM 201 SUBMITTING THE CLAIM FOR THE PERIOD COMMENCING AUGUST 2, 1927, SHOWS THAT "THE INCREASED ALLOWANCES * * * ARE CLAIMED BECAUSE OF: (2) ADOPTED CHILD 14 YEARS OLD * * * ROBERT JAMES PICKTON, 324 PERKINS STREET, AKRON, OHIO. COURT DECISION, ADOPTION PAPERS, AND AFFIDAVITS ATTACHED.'

THE NAVAL REGISTER SHOWS ENSIGN PICKTON WAS BORN AUGUST 15, 1902, AND IS THUS 25 YEARS OF AGE. IT APPEARS FROM THE PAPERS SUBMITTED, INCLUDING THE DECREE OF THE COURT ENTERED AUGUST 2, 1927, THAT THE CHILD ADOPTED IS THE BROTHER OF CLAIMANT; THAT THAT BROTHER WITH HIS SISTER AND ANOTHER BROTHER RESIDE WITH THE MOTHER OF CLAIMANT AT THE ADDRESS GIVEN; AND THAT IN CONNECTION WITH THE PETITION FOR ADOPTION, ENSIGN PICKTON STATED UNDER OATH AS FOLLOWS:

I HEREBY SWEAR OR AFFIRM THAT DURING THE FOUR YEARS I WAS IN ATTENDANCE AT THE NAVAL ACADEMY I CONTRIBUTED TWO HUNDRED AND 00/100 DOLLARS TO THE SUPPORT OF MY MOTHER AND MY YOUNGER SISTER AND MY TWO BROTHERS, MY PAY AT THAT TIME BEING SIXTY DOLLARS PER MONTH.

THAT IN THE TWENTY-SIX MONTHS SINCE MY GRADUATION AND ACCEPTANCE OFA COMMISSION IN THE UNITED STATES NAVAL SERVICE I HAVE CONTRIBUTED TWENTY DOLLARS A MONTH EACH MONTH IN THE FORM OF A GOVERNMENT ALLOTMENT TO THE SUPPORT OF MY MOTHER, SISTER AND TWO BROTHERS, MY PAY DURING THIS TIME BEING ONE HUNDRED AND FORTY-THREE DOLLARS PER MONTH.

THAT I INTEND SENDING FORTY DOLLARS A MONTH ADDITIONAL WHICH WOULD BE PAID ME SHOULD MY BROTHER BE MADE A DEPENDENT OF MINE, TO MY MOTHER FOR HIS SUPPORT.

THAT MY FATHER IS DEAD AND THAT THIS DEPENDENT'S PAY IS NECESSARY FOR THE PROPER SUPPORT OF MY MOTHER, SISTER, AND TWO BROTHERS.

THE DECREE OF THE COURT GRANTING THE ADOPTION ALSO RECITED THAT THE EVIDENCE SHOWS "THAT THE CHILD WILL HAVE PROPERTY CONSISTING OF A TRUST FUND ON DEATH OF GRANDFATHER.' SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDES:

THAT THE TERM "DEPENDANT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE MOTHER OF THE OFFICER PROVIDED SHE IS IN FACT DEPENDENT ON HIM FOR HER CHIEF SUPPORT.

THE WORDS IN JUXTAPOSITION ARE "A LAWFUL WIFE AND UNMARRIED CHILDREN," WHICH APPARENTLY HAVE A RELATION TO THE OFFSPRING OF THE OFFICER WITH A LAWFUL WIFE.

ON THE PASSAGE OF THE ACT OF JUNE 10, 1922, THERE WERE IN EFFECT THE PROVISIONS OF THE ACT OF APRIL 16, 1918, 40 STAT. 530 (CONTINUED AND MADE EFFECTIVE UNTIL JUNE 30, 1922, BY SECTION 2 OF THE ACT OF MAY 18, 1920, 41 STAT. 602), AUTHORIZING DURING THE CONTINUANCE OF THE THEN EXISTING EMERGENCY TO AN OFFICER ON FIELD DUTY OR ON DUTY WITHOUT THE TERRITORIAL JURISDICTION OF THE UNITED STATES "WHO MAINTAINS A PLACE OF ABODE FOR A WIFE, CHILD, OR DEPENDENT PARENT," THE FURNISHING OF PUBLIC QUARTERS TO SUCH WIFE, CHILD, OR DEPENDENT PARENT, AND IF NONE WERE AVAILABLE, THE PAYMENT TO THE OFFICER OF COMMUTATION OF QUARTERS, HEAT, AND LIGHT IN LIEU THEREOF. IN THE CONSIDERATION OF THAT ACT THE COMPTROLLER OF THE TREASURY HELD IN 24 COMP. DEC. 681, 686:

THE TERM "CHILD" AS USED IN THE ACT INCLUDES AN UNMARRIED PERSON (THE OFFICER'S OFFSPRING OR A CHILD LEGALLY ADOPTED BY HIM PRIOR TO APRIL 16, 1918) UNDER 18 YEARS OF AGE, OR OF ANY AGE IF INSANE OR IDIOTIC. IT DOES NOT INCLUDE A STEPCHILD NOR A CHILD, EITHER OF HIS OWN BLOOD OR LEGALLY ADOPTED, WHO IS MARRIED OR HAS ATTAINED THE AGE OF 18 YEARS. IT INCLUDES A GRANDCHILD AS A CHILD IF THE PARENTS OF THE GRANDCHILD ARE DEAD AND THE OFFICER MAINTAINS THE RELATIONSHIP OF PARENT.

THE REQUIREMENT THAT THE ADOPTION MUST HAVE OCCURRED PRIOR TO THE PASSAGE OF THE ACT WAS OBVIOUSLY DESIGNED TO EXCLUDE CASES OF ADOPTION MADE WITH A VIEW TO SECURING THE INCREASED ALLOWANCES UNDER A TEMPORARY STATUTE IN EFFECT ONLY DURING THE WAR, AND SEEMS TO HAVE BEEN INFLUENCED BY THE PROVISION CONTAINED IN THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, WHERE IN DEFINING THE WORD "CHILD" IT WAS PROVIDED, 40 STAT. 398, 401, THAT IN ARTICLES II, RELATING TO ALLOTMENTS AND FAMILY ALLOWANCES; III, RELATING TO COMPENSATION FOR DEATH OR DISABILITY; AND IV, RELATING TO INSURANCE, UNLESS THE CONTEXT OTHERWISE REQUIRED:

(1) THE TERM "CHILD" INCLUDES---

(A) A LEGITIMATE CHILD.

(B) A CHILD LEGALLY ADOPTED MORE THAN SIX MONTHS BEFORE THE ENACTMENT OF THIS AMENDATORY ACT OR BEFORE ENLISTMENT OR ENTRANCE INTO OR EMPLOYMENT IN ACTIVE SERVICE IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, WHICHEVER OF THOSE DATES IS THE LATER.

IN THE ENACTMENT OF THE WORLD WAR VETERANS' ACT, 43 STAT. 607, AFTER THE PROVISIONS FOR FAMILY ALLOWANCES AND COMPENSATION FOR DEATH OR DISABILITY IN THE SERVICE WERE NO LONGER OPERATIVE, THE WORD "CHILD" WAS DEFINED AS INCLUDING "A CHILD LEGALLY ADOPTED.'

IN THE INTERPRETATION OF THE WORD "CHILD" IN THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDING FOR THE TRANSPORTATION OF THE WIFE OR DEPENDENT CHILD OR CHILDREN OF OFFICERS AND CERTAIN ENLISTED MEN, THE COMPTROLLER OF THE TREASURY HELD, 27 COMP. DEC. 579, 583, THAT IT INCLUDED A CHILD LEGALLY ADOPTED BY THE OFFICER PRIOR TO MAY 18, 1920. THE CONSTRUCTION OF A PERMANENT LAW RELATING TO "CHILD OR CHILDREN" TO INCLUDE ADOPTED CHILDREN ONLY IF ADOPTED PRIOR TO THE ENACTMENT OF THE STATUTE WAS OBVIOUSLY UNSOUND, AND SO MUCH OF THIS LATER DECISION AS REQUIRED THAT ADOPTION BE PRIOR TO MAY 18, 1920, WAS OVERRULED IN DECISION OF THIS OFFICE OF MAY 15, 1922, 1 COMP. GEN. 670, AS WAS ALSO THE HOLDING THAT GRANDCHILDREN WERE INCLUDED IN THE TERM.

THE LIMITATION IMPOSED BY THE ACT OF OCTOBER 6, 1917, AND THE CONSTRUCTION PLACED ON THE ACT OF APRIL 16, 1917, WERE WARRANTED. THE PURPOSE OF THE RESPECTIVE STATUTES WAS TO PROVIDE ADDITIONAL OR INCREASED ALLOWANCES TO OFFICERS AND ENLISTED MEN WHO, IN FACT, WERE RESPONSIBLE FOR THE SUPPORT OF CHILD OR CHILDREN, AND WHERE MEN WITHOUT THOUGHT OF PERSONAL GAIN AND PRIOR TO THE ENACTMENT OF THE RESPECTIVE LAWS HAD ENTERED INTO AN OBLIGATION BY LEGAL ADOPTION TO MAINTAIN A CHILD OR CHILDREN, THE SPIRIT OF THE RESPECTIVE STATUTES REQUIRED INCLUSION OF CHILDREN SO ADOPTED BUT JUSTIFIED THE EXCLUSION OF ADOPTED CHILDREN WHO WERE ADOPTED AFTER KNOWLEDGE THAT THE LAW PROVIDED AN INCREASE IN ALLOWANCES FOR CHILDREN. BUT BOTH SUCH LIMITATION AND SUCH CONSTRUCTION INDICATE CLEARLY THAT THE TERM "CHILD OR CHILDREN" DOES NOT, IN THE ORDINARY OR USUAL SENSE, INCLUDE ADOPTED CHILDREN. THE UNSOUNDNESS OF INCLUDING IN THE PHRASE SUCH ADOPTED CHILDREN AND EXCLUDING OTHERS WAS RECOGNIZED IN 1 COMP. GEN. 670. THE PHRASE AS USED IN THE STATUTE HERE IN QUESTION EITHER INCLUDES ALL OR NO ADOPTED CHILDREN. IN PRACTICE, IN APPLYING THE CONSTRUCTION OF THE PHRASE AS USED IN THE ACT OF APRIL 16, 1918, TO THE PHRASE AS USED IN SECTIONS 4 AND 12 OF THE ACT OF JUNE 10, 1922, THE DIFFERENCE BETWEEN A TEMPORARY STATUTE TO CONTINUE IN EFFECT ONLY DURING THE THEN EXISTING WAR AND ONE ESTABLISHING PERMANENTLY ALLOWANCES OF OFFICERS OF THE ARMY AND NAVY SEEMS TO HAVE BEEN LOST SIGHT OF. YOUR SUBMISSION THUS PRESENTS FOR CONSIDERATION THE PROPER CONSTRUCTION OF THE TERM AS USED IN SECTIONS 4 AND 12 OF THE ACT OF JUNE 10, 1922. SECTION 1 OF THE REVISED STATUTES PROVIDES:

IN DETERMINING THE MEANING OF THE REVISED STATUTES, OR OF ANY ACT OR RESOLUTION OF CONGRESS PASSED SUBSEQUENT TO FEBRUARY TWENTY-FIFTH, EIGHTEEN HUNDRED AND SEVENTY-ONE, * * *; WORDS, IMPORTING THE PLURAL NUMBER MAY INCLUDE THE SINGULAR; * * *, UNLESS THE CONTEXT SHOWS THAT SUCH WORDS WERE INTENDED TO BE USED IN A MORE LIMITED SENSE; * * *.

THE TERM "CHILDREN" AS USED IN THIS SECTION THUS INCLUDES CHILD. THE SUPREME COURT HAS SAID "IN CONSTRUING STATUTES WORDS ARE TAKEN IN THEIR ORDINARY SENSE.' WATER POWER CO. V. STREET RAILWAY CO., 172 U.S. 475, 491. TO THE SAME EFFECT IS TREAT V. WHITE, 181 U.S. 264, 267, AND MARTIN V. HUNTER'S LESSEE, 1 WHEAT. 304, 326. AND THIS IS UNIFORMLY THE RULE UNLESS THE CONTEXT REQUIRES A DIFFERENT CONSTRUCTION OF THE WORD OR PHRASE. WHAT, THEN, IS THE "ORDINARY SENSE" OF THE WORD ,CHILDREN? "BUT THE LEGAL CONSTRUCTION OF THE WORD "CHILDREN" ACCORDS WITH ITS POPULAR SIGNIFICATION, NAMELY, AS DESIGNATING THE IMMEDIATE OFFSPRING.' ADAMS, ET AL. V. LAW, 17 HOW. 417, 421. TO THE SAME EFFECT IS IN RE LASKE, 90 N.E. 652, 654; 197 N.Y. 193; 27 L.R.A. (NS) 1158 THAT " "CHILD OR CHILDREN" IN COMMON PARLANCE IMPORTS A CHILD OR CHILDREN BORN IN LAWFUL WEDLOCK AND NOT A CHILD OR CHILDREN WHOSE FILIAL RELATION ARISES SOLELY OUT OF AN ADOPTION.'

THE PHRASE HAS BEEN GIVEN A BROADER MEANING IN THE CONSTRUCTION OF WILLS WHERE NECESSARY TO EFFECTUATE THE INTENTION OF THE TESTATOR. FOR EXAMPLE, SEE IN RE KEOGH, 98 N.Y.SUPP. 433, 435; 112 APP.DIV. 414; AND AS WELL IN OTHER LEGAL DOCUMENTS WHERE IT MAY BE NECESSARY TO CARRY OUT THE INTENT, MARTIN V. AETNA LIFE INSURANCE CO., 73 ME. 25, 27. IN STATUTES OF DESCENT AND DISTRIBUTION, OF COURSE, THE PHRASE "CHILD OR CHILDREN" INCLUDES ADOPTED CHILDREN BY VIRTUE OF THE TERMS OF THE ADOPTION LAW DESIGNED TO GIVE SUCH CHILDREN THE RIGHT OF INHERITANCE FROM THE ADOPTING PARENT. BUT WHERE USED IN OTHER STATUTES, UNLESS CLEARLY INDICATING AN INTENT OTHERWISE, THE UNIFORM CONSTRUCTION SEEMS TO BE THAT IT IS USED IN ITS PRIMARY TECHNICAL SENSE AS LINEAL DESCENDANTS AND EXCLUDES ADOPTED CHILD OR CHILDREN; THAT IS, THE ACT OF THE ADOPTING PARENT CAN NOT AFFECT THE RIGHTS OR LIABILITIES OF OTHERS WITH RESPECT TO "CHILD OR CHILDREN" OF THE ADOPTING PARENTS. IN RE MILLER'S ESTATE, 18 N.E. 139, 140; 110 N.Y. 216; COMMONWEALTH V. NANCREDE, 32 PA. (8 CASEY), 389, 390. IN RE MOORE'S ESTATE, 35 N.Y. SUPP. 782, 784; 90 HUN. 162; CLARKSON V. HATTON, 44 S.W. 761, 762; 143 MO. 47; 39 L.R.A. 748.

THUS IN THE CASE OF CLARKSON V. HATTON, SUPRA, THE COURT SAYS:

* * * ADOPTION WAS UNKNOWN TO THE COMMON LAW, BEING REPUGNANT TO ITS PRINCIPLES AND THE INSTITUTION UPON WHICH IT WAS BUILDED, BUT WAS RECOGNIZED BY THE CIVIL LAW FROM ITS EARLIEST DAY, AND EXISTS IN THIS COUNTRY BY THE STATUTES OF EVERY STATE SO FAR AS WE HAVE HAD OCCASION TO EXAMINE. THE CHILD BECOMES, IN A LEGAL SENSE, THE CHILD OF THE ADOPTING PARENTS, AND AT THE SAME TIME REMAINS THE CHILD OF ITS NATURAL PARENTS, AND IS NOT DEPRIVED OF ITS RIGHTS OF INHERITANCE FROM THEM UNLESS EXPRESSLY SO PROVIDED BY STATUTE. WAGNER V. VARNER, 50 IOWA, 534. * * *

* * * IN SCHAFER V. ENEU, 54 PA. 304, IT WAS HELD THAT THE ADOPTED CHILDREN ARE NOT CHILDREN OF THE PERSONS BY WHOM THEY HAVE BEEN ADOPTED, AND THAT THE ACT OF THE LEGISLATURE IN PASSING THE ADOPTION STATUTE DID NOT ATTEMPT THE IMPOSSIBLE, THE COURT SAYING: "GIVING AN ADOPTED SON A RIGHT TO INHERIT DOES NOT MAKE HIM A SON IN FACT, AND HE IS SO REGARDED IN LAW, ONLY TO GIVE THE RIGHT TO INHERIT. * * *"

IN COMMONWEALTH V. NANCREDE, SUPRA, IT WAS HELD AN ADOPTED CHILD IS NOT EXEMPTED FROM A COLLATERAL INHERITANCE TAX AS A NATURAL CHILD WOULD BE MERELY BECAUSE THE STATUTE GIVES HIM THE RIGHT TO INHERIT; AND IN THE CONSIDERATION OF SECTION 2172, REVISED STATUTES, WHICH PROVIDES THAT THE MINOR CHILDREN (IF DWELLING IN THE UNITED STATES) OF PERSONS DULY NATURALIZED SHALL BE CONSIDERED AS CITIZENS OF THE UNITED STATES, HAS BEEN CONSTRUED AS NOT INCLUDING AN ADOPTED CHILD OF SUCH NATURALIZED PERSON. POWERS V. HARTEN (1918), 167 N.W. 693; 183 IOWA, 764.

APPLYING THIS JUDICIAL DETERMINATION AS TO THE MEANING OF THE PHRASE "CHILD OR CHILDREN" TO THE PRESENT MATTER, THE WORD "CHILDREN" AS USED IN SECTIONS 4 AND 12 OF THE ACT OF JUNE 10, 1922, CLEARLY WAS DESIGNED TO INCLUDE ONLY THE LEGITIMATE OFFSPRING BORN IN LAWFUL WEDLOCK OF THE CLAIMING OFFICER AND GIVES NO RIGHT TO OFFICERS TO INCREASE THE OBLIGATION OF THE GOVERNMENT BY THE EXPEDIENT OF ADOPTING A BROTHER, SISTER, NIECE, OR NEPHEW, OR A STRANGER TO HIS BLOOD, AND THIS WITHOUT REFERENCE TO WHETHER SUCH ADOPTION (INDEPENDENTLY OF THE LEGAL OBLIGATIONS IMPOSED) ACTUALLY DOES OR DOES NOT CAST UPON HIM IN THE PARTICULAR CIRCUMSTANCES OF A GIVEN CASE THE RESPONSIBILITY, CARE, MAINTENANCE, EDUCATION, AND SUPPORT OF A MINOR CHILD; AND ALSO INDEPENDENTLY OF WHETHER THE ADOPTION WAS PRIOR TO APRIL 16, 1918, MAY 18, 1920, JUNE 10, 1922, OR ANY OTHER DATE.

THIS BEING A REVERSAL OF PRIOR DECISIONS, PAYMENTS HERETOFORE MADE OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS, THE DEPENDENT BEING AN ADOPTED CHILD OR CHILDREN, AND FOR TRANSPORTATION OF ADOPTED CHILDREN, WILL NOT BE DISTURBED AND SUCH PAYMENTS IN THE CASE OF OFFICERS WHO HAVE BEEN REGULARLY CREDITED WITH SUCH INCREASED ALLOWANCES WILL BE PASSED TO CREDIT FOR PERIODS TO AND INCLUDING NOVEMBER 30, 1927, WHEN NOTICE OF THIS DECISION SHOULD BE KNOWN AT ALL STATIONS. PAYMENTS THEREAFTER TO SUCH OFFICERS FOR DEPENDENT ADOPTED CHILDREN WILL BE DISALLOWED IN THE DISBURSING OFFICER'S ACCOUNT. PAYMENTS WILL BE PASSED TO CREDIT IN CASES WHERE CLAIMS HAVE BEEN ASSERTED ON SUCH GROUND BUT NOT PAID, WHETHER SUCH PAYMENTS ARE MADE BEFORE OR AFTER NOVEMBER 30, 1927. YOU ARE NOT AUTHORIZED TO CREDIT THE ACCOUNT OF ENSIGN WILLIS HENRY PICKTON, UNITED STATES NAVY, WITH INCREASED ALLOWANCES AS AN OFFICER WITH DEPENDENTS, THE DEPENDENT BEING AN ADOPTED CHILD.