A-55729, JUNE 14, 1934, 13 COMP. GEN. 439

A-55729: Jun 14, 1934

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GRATUITIES - SIX MONTHS' DEATH - RELATIVE A FOSTER MOTHER WHO WAS NOT AN ADOPTIVE MOTHER AND A PUTATIVE FATHER WHO HAD NEVER UNDER THE LAWS OF PUERTO RICO LEGITIMATED OR ADOPTED HIS ILLIGITIMATE SON WHO WAS AN ENLISTED MAN IN THE ARMY. ARE NOT "RELATIVES" OF SUCH ENLISTED MAN WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF DECEMBER 17. ARE NOT ENTITLED TO THE GRATUITY THEREIN PROVIDED FOR DEPENDENT RELATIVES PREVIOUSLY DESIGNATED BY THE ENLISTED MAN. OF 2 VOUCHERS SUBMITTED THEREWITH IS AUTHORIZED TO BE PAID. ONE VOUCHER IS STATED IN FAVOR OF JUANA LOPEZ. THE OTHER VOUCHER IS STATED IN FAVOR OF AGUSTIN RIOS. WHICH IS PART OF THE VOUCHER IN HER FAVOR. JUANA LOPEZ AVERS THAT SHE IS THE STEPMOTHER (IN FACT.

A-55729, JUNE 14, 1934, 13 COMP. GEN. 439

GRATUITIES - SIX MONTHS' DEATH - RELATIVE A FOSTER MOTHER WHO WAS NOT AN ADOPTIVE MOTHER AND A PUTATIVE FATHER WHO HAD NEVER UNDER THE LAWS OF PUERTO RICO LEGITIMATED OR ADOPTED HIS ILLIGITIMATE SON WHO WAS AN ENLISTED MAN IN THE ARMY, ARE NOT "RELATIVES" OF SUCH ENLISTED MAN WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, AND ACCORDINGLY, ARE NOT ENTITLED TO THE GRATUITY THEREIN PROVIDED FOR DEPENDENT RELATIVES PREVIOUSLY DESIGNATED BY THE ENLISTED MAN.

COMPTROLLER GENERAL MCCARL TO MAJOR E. C. MORTON, UNITED STATES ARMY, JUNE 14, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 14, 1934, REQUESTING DECISION AS TO WHICH, IF EITHER, OF 2 VOUCHERS SUBMITTED THEREWITH IS AUTHORIZED TO BE PAID, SAID VOUCHERS EACH MAKING CLAIM FOR THE 6 MONTHS' DEATH GRATUITY PROVIDED UNDER THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED BY THE ACT OF MARCH 2, 1923, 42 STAT. 1385, IN THE CASE OF TITO CORREA, NO. R -35560, LATE CORPORAL, COMPANY B, SIXTY FIFTH INFANTRY, WHO DIED JUNE 14, 1932, AT POST OF SAN JUAN, PUERTO RICO. ONE VOUCHER IS STATED IN FAVOR OF JUANA LOPEZ, DESIGNATED BY THE DECEDENT AS HIS MOTHER. THE OTHER VOUCHER IS STATED IN FAVOR OF AGUSTIN RIOS, DESIGNATED BY THE DECEDENT AS HIS FATHER.

IN HER AFFIDAVIT, WHICH IS PART OF THE VOUCHER IN HER FAVOR, JUANA LOPEZ AVERS THAT SHE IS THE STEPMOTHER (IN FACT, THE FOSTER-MOTHER) OF THE SOLDIER, IT APPEARING FROM SAID AFFIDAVIT THAT SHE IS NOT, IN FACT, RELATED IN ANY WAY TO THE DECEDENT AND NO CLAIM OF RELATIONSHIP IS MADE BY HER. THERE IS NO EVIDENCE THAT SHE EVER LEGALLY ADOPTED THE DECEDENT AS HER SON.

THE AFFIDAVITS OF AGUSTIN RIOS ATTACHED TO AND FORMING PART OF THE VOUCHER IN HIS FAVOR AVER THAT HE IS SINGLE, AGED 65 YEARS, EMPLOYED AT FARMING, AND THAT THE DECEDENT WAS HIS SON, HIS MOTHER BEING INOCENCIA CRUZ,"WHO DIED A LONG TIME AGO.' THE FACTS AVERRED SUGGEST THAT THE SOLDIER WAS THE ILLEGITIMATE SON OF THE CLAIMANT RIOS.

THE TERM "CHILD" OR "CHILDREN" AS USED IN THE STATUTES, GENERALLY, EMBRACES ONLY LEGITIMATE CHILDREN. ORTHWEIN V. THOMAS, 127 ILL. 554. THIS WORD "PARENT" AS USED IN PENAL STATUTES CANNOT BE APPLIED TO THE FATHER OF AN ILLEGITIMATE CHILD. PEOPLE V. RUPP, 219 ILL. 269. THE FATHER OF AN ILLEGITIMATE CHILD IS NOT WITHIN THE MEANING OF THE WORD "PARENT" OR "FATHER" AS USED IN THE WAR-RISK INSURANCE ACT, AND CANNOT BE MADE A BENEFICIARY OF A WAR-RISK POLICY. HOWARD V. UNITED STATES, 2 FED./2D) 170. THE WORDS "RELATIVES" AND "RELATIONS" AS USED IN STATUTES HAVE UNIFORMLY BEEN HELD NOT TO INCLUDE AN ILLEGITIMATE CHILD; AND TO INCLUDE ONLY THOSE PERSONS WHO ARE ENTITLED TO SHARE IN THE ESTATE AS NEXT OF KIN UNDER STATUTES OF DISTRIBUTION. IN RE SOBEL'S ESTATE, 191 N.Y.S. 676; LAVIGNE V. LIGNE DES PATRIOTES, 54 L.R.A. 814 (178 MASS. 25).

IN FORDHAM V. MARRERO, 273 FED. 61, DECIDED MAY 12, 1921, AN APPEAL FROM A FINAL JUDGMENT OF THE SUPREME COURT OF PUERTO RICO, IT WAS STATED WITH REGARD TO A CHILD BORN SEPTEMBER 16, 1901, THAT:

AT THE TIME OF THE BIRTH OF THE APPELLEE THE CIVIL CODE OF SPAIN RELATING TO THE ACKNOWLEDGEMENT OF CHILDREN BORN OUT OF WEDLOCK WAS IN FORCE IN PUERTO RICO (MENDEZ V. MARTINEZ, 21 P.R.R. 238), AND THIS PROVIDED AS FOLLOWS:

"ART. 135. THE FATHER IS OBLIGED TO ACKNOWLEDGE THE NATURAL CHILD IN THE FOLLOWING CASES:

"1. WHEN INDISPUTABLE PAPER WRITTEN BY HIM, EXPRESSLY ACKNOWLEDGING HIS PATERNITY, IS IN EXISTENCE.

"2. WHEN THE CHILD IS IN THE UNINTERRUPTED ENJOYMENT OF THE STATUS OF A NATURAL CHILD OF THE DEFENDANT FATHER, JUSTIFIED BY DIRECT ACTS OF THE SAID FATHER OR OF HIS FAMILY.'

THE DECEASED SOLDIER, ACCORDING TO REPORT OF MILITARY HISTORY DATED OCTOBER 1, 1932, FIRST ENLISTED AUGUST 5, 1916, WHICH IN VIEW OF THE AGE LIMIT FOR ENLISTMENTS, INDICATES HE WAS BORN PRIOR TO OR ABOUT 1898, AT WHICH TIME ARTICLE 135 OF THE CIVIL CODE OF SPAIN, CITED, SUPRA, GOVERNED ACKNOWLEDGMENT OF NATURAL CHILDREN. THAT THE CLAIMANT, RIOS, NEVER COMPLIED WITH THE PROVISIONS OF LAW RELATING TO ACKNOWLEDGMENT OF DISTRICT OF ARECIBO, PUERTO RICO DATED JULY 20, 1932, TRANSLATED COPY OF WHICH IS IN THE FILE, AND HOLDS:

THAT THE SOLE HEIR OF VINCENTE CORREA, KNOWN AS TITTA CORREA, IS HIS MATERNAL GRANDMOTHER, MRS. MARIE VIVIANA CRUZ, THE INFORMER, A PERSON OF AGE, WIDOW, HOUSEWIFE, RESIDENT OF ARECIBO. THE COURT DECIDES THIS BECAUSE SHE IS THE ONLY PERSON WHO HAS A RIGHT TO THE ESTATE LEFT BY SAID PRINCIPAL, ACCORDING TO ART. 900 OF THE CIVIL CODE OF PUERTO RICO, VICENTE OR TITTO CORREA HAVING LEFT NEITHER FATHER, MOTHER, NOR LEGITIMATE OFFSPRING.

AS THE "FATHER" NEVER LEGITIMATED TITO CORREA AS CONTEMPLATED UNDER THE LAWS IN FORCE IN PUERTO RICO AT THE TIME OF HIS BIRTH, OR THEREAFTER SUCH FATHER IS NOT WITHIN THE MEANING OF THE TERM ,RELATIVE" AS USED IN THE ACT OF DECEMBER 17, 1919, SUPRA.

NEITHER OF THE CLAIMANTS BEING "RELATIVES" WITHIN THE MEANING OF THAT TERM AS USED IN THE DEATH GRATUITY STATUTE, IT IS NOT MATERIAL WHETHER THEY WERE DEPENDENT ON, OR WERE DESIGNATED BY, THE SOLDIER. SEE 9 COMP. GEN. 39, AND CASES CITED.

YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON EITHER OF THE SUBMITTED VOUCHERS WHICH ARE RETAINED IN THE FILES OF THIS OFFICE.