A-24588, NOVEMBER 6, 1928, 8 COMP. GEN. 235

A-24588: Nov 6, 1928

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HAVE FILED CLAIMS IN THEIR REPRESENTATIVE CAPACITIES FOR AN APPARENT BALANCE IN EXCESS OF $600 DUE IN THE ACCOUNT OF THE DECEASED. WHEREIN THE FACTS ON WHICH THE CLAIMS ARE BASED ARE SUMMARIZED AS FOLLOWS: WILLIAM BLAKELY. WAS BORN ON MARCH 18TH. THAT HE WAS ADOPTED BY WILLIAM S. SINCE WHICH TIME HE WAS KNOWN AS JOSEPH BLAKELY. WHILE HE WAS A RESIDENT OF THE STATE OF INDIANA. THAT AT THE TIME OF THIS ENLISTMENT DECEASED AND HIS ADOPTIVE FATHER WERE MAKING THEIR HOME WITH THIS AFFIANT AT LINTON. THAT DECEASED WAS DISCHARGED FROM HIS FIRST ENLISTMENT ON JANUARY 21ST. WHERE HE WAS EMPLOYED IN A COAL MINE. WHICH WAS MARCH 26TH. WAS SERVING IN SAID FOURTH ENLISTMENT WHEN HE DIED MAY 13.

A-24588, NOVEMBER 6, 1928, 8 COMP. GEN. 235

ESTATES OF DECEDENTS - NAVY ENLISTED MAN - FOSTER BROTHERS AND ADOPTED SISTER MONEY DUE FROM THE UNITED STATES TO THE ESTATE OF A DECEASED ENLISTED MAN OF THE NAVY MAY NOT BE PAID TO AN ADMINISTRATOR WHO HAS NO INTEREST AS LEGAL HEIR OR BONA FIDE CREDITOR, OR WHO DOES NOT ACT FOR SUCH HEIR OR CREDITOR OF THE ESTATE. RIGHTS OF INHERITANCE DO NOT ARISE MERELY FROM THE PERFORMANCE OF A CONTRACT OF ADOPTION AND ONE WHO CLAIMS AN ACT OF ADOPTION HAS BEEN ACCOMPLISHED MUST SHOW THERE HAS BEEN A COMPLIANCE WITH EVERY ESSENTIAL REQUIREMENT. MONEY DUE FROM THE UNITED STATES TO THE ESTATE OF A DECEASED ENLISTED MAN OF THE NAVY MAY NOT BE PAID TO HIS BROTHERS AND A SISTER BY ADOPTION OR TO AN ADMINISTRATOR ACTING SOLELY ON THEIR BEHALF.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 6, 1928:

WILLIAM BLAKELY OF TERRA HAUTE, IND., AND ARTHUR BLAKELY OF PRATT CITY, ALA., HAVING OBTAINED LETTERS OF ADMINISTRATION FROM THE VIGO COUNTY CIRCUIT COURT (PROBATE DIVISION) OF INDIANA AND OF THE PROBATE COURT OF JEFFERSON COUNTY, ALA., RESPECTIVELY, ON THE ESTATE OF JOSEPH BLAKELEY, LATE CHIEF ELECTRICIAN'S MATE (PA), UNITED STATES NAVY, WHOSE DEATH OCCURRED AT THE UNITED STATES NAVAL HOSPITAL, SAN DIEGO, CALIF., MAY 13, 1926, HAVE FILED CLAIMS IN THEIR REPRESENTATIVE CAPACITIES FOR AN APPARENT BALANCE IN EXCESS OF $600 DUE IN THE ACCOUNT OF THE DECEASED, REPRESENTING ARREARS OF PAY, CASH FOUND IN HIS EFFECTS, ETC.

THERE HAS BEEN FILED BY WILLIAM BLAKELY AN AFFIDAVIT EXECUTED MAY 26, 1928, WHEREIN THE FACTS ON WHICH THE CLAIMS ARE BASED ARE SUMMARIZED AS FOLLOWS:

WILLIAM BLAKELY, OF TERRE HAUTE, VIGO COUNTY, INDIANA, ON HIS OATH, DEPOSES AND SAYS: THAT JOSEPH BLAKELEY, RECENTLY OF THE UNITED STATES NAVY, WHO DIED MAY 13TH, 1926, WAS BORN ON MARCH 18TH, 1890, AT PRATT CITY, ALABAMA, HIS NAME BEING THOMAS MCCOUGH; THAT HE WAS ADOPTED BY WILLIAM S. BLAKELY AND MARGARET BLAKELY, HIS WIFE, FATHER AND STEPMOTHER, RESPECTIVELY, OF AFFIANT, AT PRATT CITY, ALABAMA, ABOUT 1895, SINCE WHICH TIME HE WAS KNOWN AS JOSEPH BLAKELY; THAT FOLLOWING SAID ADOPTION, AFFIANT'S FATHER CAME TO INDIANA IN ABOUT THE YEAR 1902, BRINGING WITH HIM SAID ADOPTED CHILD, AND REMAINED IN INDIANA UNTIL AFTER 1909; WHILE HE WAS A RESIDENT OF THE STATE OF INDIANA, DECEASED FIRST ENLISTED IN THE UNITED STATES NAVY AT TERRE HAUTE, IND., JAN. 22, 1909; THAT AT THE TIME OF THIS ENLISTMENT DECEASED AND HIS ADOPTIVE FATHER WERE MAKING THEIR HOME WITH THIS AFFIANT AT LINTON, INDIANA; THAT DECEASED WAS DISCHARGED FROM HIS FIRST ENLISTMENT ON JANUARY 21ST, 1913, AT WHICH TIME HE RETURNED TO INDIANA AND MADE HIS HOME WITH AFFIANT AT VINCENNES, INDIANA, WHERE HE WAS EMPLOYED IN A COAL MINE. THAT HE MADE HIS HOME WITH AFFIANT UNTIL THE DATE OF HIS SECOND ENLISTMENT, WHICH WAS MARCH 26TH, 1915; THAT FOLLOWING DISCHARGE FROM SAID SECOND ENLISTMENT ON APRIL 27TH, 1919, DECEASED RETURNED TO AND MADE HIS HOME WITH AFFIANT AT VINCENNES, INDIANA, AND REMAINED WITH AFFIANT AND REMOVED WITH HIM TO TERRE HAUTE, INDIANA, ABOUT JUNE 1ST, 1919. DECEASED AGAIN ENLISTED IN THE UNITED STATES NAVY AT INDIANAPOLIS, INDIANA, ON JULY 15TH, 1919; THAT DECEASED NEVER AGAIN RETURNED TO HIS HOME AND UPON DISCHARGE FROM SAID THIRD ENLISTMENT HE IMMEDIATELY REENLISTED FOR A FOURTH TIME AT HAMPTON ROADS, VIRGINIA, AND WAS SERVING IN SAID FOURTH ENLISTMENT WHEN HE DIED MAY 13, 1926, AT THE NAVAL HOSPITAL AT SAN DIEGO, CALIFORNIA.

AFFIANT FURTHER DEPOSES AND SAYS: THAT DURING ALL OF DECEDENT'S SERVICE IN THE UNITED STATES NAVY HE KNEW NO OTHER HOME AND REGARDED NO OTHER PLACE AS HIS HOME, AS AFFIANT IS INFORMED AND BELIEVES, EXCEPT HIS SAID HOME AND RESIDENCE WITH AFFIANT IN THE STATE OF INDIANA, AND DURING ALL OF SAID TIME THIS AFFIANT LIVED AND HAD HIS HOME IN INDIANA, AND LIVED AND RESIDED AT TERRE HAUTE, VIGO COUNTY, INDIANA, ON MAY 13TH, 1926, THE SAME BEING THE DATE OF DEATH OF DECEASED.

THAT DURING ALL OF SAID TIME DECEASED GAVE THE NAME OF AFFIANT AS HIS NEXT OF KIN AND THE ADDRESS OF AFFIANT AS HIS EMERGENCY ADDRESS; THAT FOLLOWING HIS DEATH, DECEASED'S REMAINS AND ALL OF HIS PERSONAL EFFECTS AND BELONGINGS WERE SHIPPED TO AFFIANT AT TERRE HAUTE, INDIANA, AND THAT DECEASED WAS BURIED AT HIGHLAND LAWN CEMETERY, TERRE HAUTE, INDIANA.

AFFIANT FURTHER DEPOSES AND SAYS: THAT HE KNOWS OF NO BLOOD RELATIVES OF DECEASED, DECEASED'S FATHER AND MOTHER HAVING BOTH LONG PREDECEASED HIM, HIS FATHER HAVING DIED BEFORE THE DATE OF ADOPTION AND HIS MOTHER SOON THEREAFTER, AS AFFIANT HAS BEEN INFORMED; THAT DECEASED'S ADOPTIVE FATHER, WILLIAM S. BLAKELY, DIED AT MOBILE, ALA., APRIL 4TH 1912, AND HIS ADOPTIVE MOTHER AT LINTON, IND., ABOUT JAN. 7TH, 1908, BURIED JAN. 10, 1908; THAT DECEASED HAD NO BROTHERS OR SISTERS OTHER THAN HIS ADOPTIVE BROTHERS AND SISTER, AS FOLLOWS: WILLIAM BLAKELY, THIS AFFIANT; ARTHUR BLAKELY, OF 82 HIGHLAND AVENUE, PRATT CITY, ALABAMA; AND MRS. MARY VALLELY, OF OAK CREEK, COLORADO, SISTER; THAT HE LEFT AT HIS DEATH NO WIDOW OR CHILDREN OR OTHER BLOOD RELATIVES OR HEIRS TO AFFIANT'S KNOWLEDGE. AFFIANT HAS NEVER DISCOVERED OR FOUND ANY WILL LEFT BY DECEASED.

AFFIANT FURTHER DEPOSES AND SAYS: THAT THE SAID JOSEPH BLAKELY WAS ENLISTED AS AND HIS SURNAME SPELLED "BLAKELEY," BUT THAT THE SAID "JOSEPH BLAKELEY" IS NEVERTHELESS ONE AND THE SAME PERSON AS THE JOSEPH BLAKELY, ADOPTED BROTHER OF AFFIANT.

ARTHUR BLAKELY, IN AN AFFIDAVIT EXECUTED MAY 14, 1928, AVERS THAT HE HAS HAD THE RECORDS OF THE PROBATE COURT FOR JEFFERSON COUNTY, ALA., SEARCHED FOR EVIDENCE SHOWING THE VALID ADOPTION OF DECEDENT BY WILLIAM S. AND MARGARET BLAKELY, BUT HAS BEEN UNABLE TO FIND ANY ENTRY THEREOF OR COPY OF THE ORDER OF ADOPTION. THE ONLY EVIDENCE PRESENTED IN THAT CONNECTION CONSISTS OF AFFIDAVITS OF PERSONS IN ALABAMA, FILED BY ARTHUR BLAKELY, WITH A VIEW TO ESTABLISHING THAT IT WAS AND HAS BEEN UNDERSTOOD IN THE COMMUNITY WHERE THE BLAKELYS LIVED THAT THERE HAD BEEN A VALID ADOPTION OF THE DECEDENT BY CLAIMANT'S FATHER AND STEPMOTHER.

THE DEBTS DUE FROM THE GOVERNMENT OF THE UNITED STATES HAVE NO LOCALITY AT THE SEAT OF GOVERNMENT. THE UNITED STATES IN THEIR SOVEREIGN CAPACITY HAVE NO PARTICULAR PLACE OF DOMICILE BUT POSSESS, IN CONTEMPLATION OF LAW, AN UBIQUITY THROUGHOUT THE UNION; THE DEBTS DUE BY THEM ARE NOT TO BE TREATED LIKE THE DEBTS OF A PRIVATE DEBTOR, WHICH CONSTITUTE LOCAL ASSETS IN HIS OWN DOMICILE AND THE ADMINISTRATOR OF A CREDITOR OF THE GOVERNMENT DULY APPOINTED IN THE STATE WHERE THE CREDITOR WAS DOMICILED AT HIS DEATH HAS AUTHORITY TO RECEIVE PAYMENT AND GIVE A FULL DISCHARGE OF THE DEBT DUE HIS INTESTATE IN ANY PLACE WHERE THE GOVERNMENT MAY CHOOSE TO PAY IT, WHETHER IT BE AT THE SEAT OF GOVERNMENT OR AT ANY OTHER PLACE WHERE THE FUNDS ARE DEPOSITED; AND, MONEYS SO PAID TO SUCH AN ADMINISTRATOR CONSTITUTE ASSETS UNDER THAT ADMINISTRATION FOR WHICH HE IS ACCOUNTABLE TO THE COURTS OF THE STATE WHERE APPOINTED. VAUGHN V. NORTHUP, 15 PET. 1, 10 L.ED. 639; UNITED STATES V. BORCHERLING, 185 U.S. 223, 46 L.ED. 884; 25 COMP. DEC. 656; 4 COMP. GEN. 417, 419.

THE DOMICILE OF A PERSON IS IN NO WAY AFFECTED BY HIS ENLISTMENT IN THE MILITARY OR NAVAL SERVICE OF HIS COUNTRY, AND HE DOES NOT THEREBY ABANDON OR LOSE THE DOMICILE WHICH HE HAD WHEN HE ENTERED THE SERVICE, NOR DOES HE ACQUIRE ONE AT THE PLACE WHERE HE SERVES, ALTHOUGH A NEW DOMICILE IN SUCH CIRCUMSTANCES MAY BE ACQUIRED IF BOTH THE FACT AND INTENT CONCUR. R.C.L. 551 (SEC. 14); 19 CORPUS JURIS, 418; 4 COMP. GEN. 417.

ALL THE EVIDENCE WHICH HAS BEEN PRESENTED, WHEN CONSIDERED TOGETHER, INDICATES RATHER CLEARLY THAT THE DOMICILE OF JOSEPH BLAKELEY AT THE TIME OF HIS DEATH WAS IN INDIANA.

MONEY DUE FROM THE UNITED STATES, HOWEVER, MAY NOT BE PAID TO AN ADMINISTRATOR WHO HAS NO INTEREST EITHER AS LEGAL HEIR OR BONA FIDE CREDITOR IN THE ESTATE OF THE DECEASED PERSON, OR WHO DOES NOT ACT FOR SUCH HEIR OR CREDITOR OF THE DECEASED PERSON WHOM HE REPRESENTS. 20 COMP. DEC. 740; 23 ID. 95. (AS TO RIGHT OF CHILD ADOPTED IN ANOTHER STATE TO TAKE UNDER LOCAL STATUTE OF DESCENT AND DISTRIBUTION, SEE NOTES TO IRVING V. FORD, 65 L.R.A. 186; BROWN V. FINLEY, 21 L.R.A. (N.S.) 679; AND FINELY V. BROWN, 25 L.R.A. (N.S.) 1285.)

THE RIGHT TO ADOPT A CHILD AND THE RIGHT OF A PERSON TO BE ADOPTED AS A CHILD OF ANOTHER ARE WHOLLY STATUTORY, AND HE WHO CLAIMS THAT AN ACT OF ADOPTION HAS BEEN ACCOMPLISHED MUST SHOW THAT EVERY ESSENTIAL REQUIREMENT HAS BEEN COMPLIED WITH. 1 R.C.L. 618 (SEC. 28); IN RE TAGGART, 190 CAL. 493, 213 PAC. 504, 27 A.L.R. 1360. RIGHTS OF INHERITANCE DO NOT ARISE MERELY FROM THE PERFORMANCE OF A CONTRACT OF ADOPTION. 1 R.C.L. 617, 618; 39 A.S.R. 220, NOTE; 8 L.R.A. (N.S.) 1132, NOTE; 12 ANN.CAS. 145, NOTE.

NO EVIDENCE WHATEVER IS PRESENTED IN THIS CASE TO ESTABLISH A VALID ADOPTION PROCEEDING IN THE CASE OF JOSEPH BLAKELEY. OFFICIAL RECORD THEREOF, OR CONCLUSIVE EVIDENCE THAT SUCH RECORD WAS MADE, ADMITTEDLY CAN NOT BE FURNISHED, AND THE FAILURE IN THIS RESPECT PRECLUDES ABSOLUTELY ANY CONSIDERATION HERE OF THE CLAIMS PRESENTED AS A PROPER BASIS FOR PAYMENT FROM PUBLIC FUNDS.

WERE IT OTHERWISE, HOWEVER, THE CLAIMS NECESSARILY WOULD BE DISALLOWED ON OTHER GROUNDS.

IN THE ABSENCE OF A STATUTE TO THE CONTRARY, IT IS USUALLY HELD THAT THE RIGHT OF INHERITANCE FROM AN ADOPTED CHILD IS IN ITS KINDRED BY BLOOD TO THE EXCLUSION OF THE ADOPTIVE PARENTS AND THEIR KINDRED, EVEN AS TO PROPERTY DERIVED BY SUCH CHILD FROM ITS ADOPTIVE PARENTS. 1 R.C.L. 613, 614 (SEC. 25); MURPHY V. PORTRUM, 95 TENN. 605, 32 S.W. 633, 30 L.R.A. 263. IN INDIANA IT IS TRUE THAT, CONTRARY TO THE GREAT WEIGHT OF AUTHORITY, IT HAS BEEN HELD AS TO PROPERTY DERIVED BY THE CHILD FROM THE ADOPTIVE PARENTS, THE RELATIVES OF SUCH PARENTS ARE TO BE REGARDED AS ITS HEIRS, EVEN IF NO STATUTE EXPRESSLY SO PRESCRIBES. HUMPHRIES V. DAVIS, 100 INDIANA 422, 50 AM.REP. 788, 39 A.S.R. 228, NOTE, 109 A.S.R. 676 NOTE; 118 A.S.R. 688, NOTE; 17 L.R.A. 437, NOTE. WHILE THE INDIANA COURTS HAVE GONE FURTHER IN THIS RESPECT THAN OTHER COURTS APPEAR TO HAVE GONE, NEITHER BY STATUTE NOR COURT DECISION HAS IT BEEN RECOGNIZED FOSTER BROTHERS OR SISTERS ARE HEIRS OF AN ADOPTED CHILD WITH RESPECT TO PROPERTY NOT DERIVED BY THE CHILD FROM THE ADOPTING PARENTS.

THE CLAIMS PRESENTED DO NOT PERTAIN TO PROPERTY DERIVED FROM THE ADOPTING PARENTS NOR TO ANYTHING OF VALUE PRIMARILY SUBJECT TO CONTROL BY STATE COURTS; AND IT IS ADMITTED IF THERE ARE HEIRS BY BLOOD THEY ARE UNKNOWN TO THE CLAIMANTS.

SEVERAL CASES ARE CITED IN THE BRIEF FILED ON BEHALF OF WILLIAM BLAKELY AS A BASIS FOR THE PROPOSITION THAT THE STATUTE OF DESCENTS OF INDIANA COVERS EVERY CONCEIVABLE CIRCUMSTANCE THAT CAN SURROUND THE DESCENT OF PROPERTY. EXAMINATION OF THESE CASES, HOWEVER, DISCLOSES THE COURTS' EXPLANATION OF THIS PROPOSITION TO BE THAT THE STATUTE CONTAINS A SERIES OF HYPOTHESES, IT THEN PROVIDES THAT IF A CASE ARISES NOT WITHIN ANY HYPOTHESES, THE ESTATE SHALL GO TO THE NEXT OF KIN, ETC., AND FURTHER, IF THE DECEDENT LEAVES NO NEXT OF KIN, HIS ESTATE SHALL ESCHEAT, ETC. THE CASES CITED ARE CLOUD V. BRUCE, 61 IND. 171; BRUCE V. BISSELL, 119 IND. 525, 22 N.E. 4; BRUNS V. COPE, 182 IND. 289, 293; 105 N.E. 471; MORIN V. HOLLIDAY, 39 APP. (IND.) 201, 206; 77 N.E. 861; AND AVERY V. VAIL, 60 IND.APP. 99, 104, 108 N.E. 599.

IN THE CASE OF AVERY V. VAIL, SUPRA, THE COURT HOLDS IN SPECIFIC LANGUAGE THAT PERSONS CLAIMING TO INHERIT PROPERTY IN INDIANA MUST BASE THEIR RIGHT ON SOME STATUTORY PROVISION AND IN THAT CONNECTION THE BRIEF FILED ON BEHALF OF WILLIAM BLAKELY SAYS:

THERE IS NO SPECIFIC STATUTE IN THIS STATE STATING IN SO MANY WORDS THAT BROTHERS AND SISTERS OF AN ADOPTED BROTHER OR SISTER WILL INHERIT FROM SUCH ADOPTED BROTHER OR SISTER.

THE CASE PRIMARILY RELIED ON IN THE BRIEF, THAT OF COOLEY V. POWERS, 63 IND.APP. 59, 62, 113 N.E. 382, INVOLVES THE ESTATE OF AN ADOPTING FATHER AND DECIDED MERELY THAT HIS ADOPTED CHILD WAS HIS "LEGITIMATE" CHILD AND RIGHTFULLY ENTITLED TO INHERIT HIS ESTATE AS HEIR WITHIN THE MEANING OF THE SECTION OF THE STATUTE WHICH PROVIDES FOR INHERITANCE BY ILLEGITIMATE CHILDREN ONLY WHEN DECEDENT IS NOT SURVIVED BY CHILDREN OR DESCENDANTS OF LEGITIMATE CHILDREN, THE OTHER CLAIMANT IN THE CASE ASSERTING DESCENT FROM AN ILLEGITIMATE CHILD. THE CASE HAS NO MORE APPLICATION TO THE CLAIMS PRESENTED THAN THE OTHER CASES CITED.

THE EVIDENCE WHICH HAS BEEN SUBMITTED AS REQUIRED BY LAW IS RETAINED IN THE PERMANENT FILES OF THIS OFFICE.