A-82069, MARCH 30, 1937, 16 COMP. GEN. 890

A-82069: Mar 30, 1937

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1937: THERE WAS RECEIVED BY FIRST ENDORSEMENT OF DECEMBER 1. AS FOLLOWS: ATTACHED HERETO IS A VOUCHER IN FAVOR OF MRS. THAT DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT. IT IS UNDERSTOOD. WAS 20 YEARS AT THE TIME OF THE DEATH OF THE FATHER. WHOSE AGE WAS 14 YEARS. THE PAPERS ATTACHED SHOW THAT THE OFFICER AND THE CLAIMANT WERE DIVORCED IN THE CORPORATION COURT OF THE CITY OF ALEXANDRIA. WAS SET ASIDE AND VACATED. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE CLAIMANT IS THE LAWFUL WIDOW WITHIN THE MEANING OF THE LAW AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER PAYMENT OF THE ATTACHED VOUCHER IS AUTHORIZED. WAS ASSIGNED TO DUTY AT HEADQUARTERS NINETEENTH BRIGADE. SHOWS THAT MAJOR KYLE WAS A RESIDENT OF ALEXANDRIA.

A-82069, MARCH 30, 1937, 16 COMP. GEN. 890

SIX MONTHS' DEATH GRATUITY - CLAIM BY ALLEGED WIDOW OF ARMY OFFICER - COURT DECREE PURPORTING TO VACATE DECREE OF DIVORCE SIX MONTHS' DEATH GRATUITY UNDER ACT OF DECEMBER 17, 1919, 41 STAT. 367, MAY NOT BE ALLOWED THE ALLEGED WIDOW OF A DECEASED ARMY OFFICER ON THE BASIS OF A DECREE OF A STATE COURT, SUBSEQUENT TO THE DEATH OF THE OFFICER, PURPORTING TO VACATE A FORMER DECREE OF DIVORCE A VINCULO MATRIMONII, WHICH UNDER ITS OWN TERMS AND THE STATUTES OF THE STATE HAD BECOME FINAL AND HAD BEEN SO ACCEPTED AND ACTED ON BY THE PARTIES, IN THE ABSENCE OF SATISFACTORY EVIDENCE THAT THE COURT HAD JURISDICTION OF THE CAUSE AND ALL INTERESTED PARTIES TO VACATE THE FORMER DECREE.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJ. E. C. MORTON, UNITED STATES ARMY, MARCH 30, 1937:

THERE WAS RECEIVED BY FIRST ENDORSEMENT OF DECEMBER 1, FROM THE OFFICE OF THE CHIEF OF FINANCE, YOUR LETTER OF NOVEMBER 30, 1936, AS FOLLOWS:

ATTACHED HERETO IS A VOUCHER IN FAVOR OF MRS. JOSEPHINE P. KYLE, IN THE AMOUNT OF $2,025.00, COVERING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THE LATE MAJOR PAUL M. N. KYLE, MEDICAL CORPS, WHICH HAS BEEN PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

THE RECORDS OF THIS OFFICE SHOW THAT MAJOR PAUL M. N. KYLE, MEDICAL CORPS, DIED MAY 1, 1936, AT FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO, AND THAT DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT. THE RECORDS FURTHER SHOW THAT THE OFFICER DESIGNATED THE CLAIMANT AND HIS TWO CHILDREN, PAUL J. KYLE, WHOSE AGE, IT IS UNDERSTOOD, WAS 20 YEARS AT THE TIME OF THE DEATH OF THE FATHER, AND RICHARD F. KYLE, WHOSE AGE WAS 14 YEARS. THE PAPERS ATTACHED SHOW THAT THE OFFICER AND THE CLAIMANT WERE DIVORCED IN THE CORPORATION COURT OF THE CITY OF ALEXANDRIA, VIRGINIA, ON APRIL 12, 1935, AND THAT UNDER AN ORDER OF THE SAME COURT, THE DECREE OF APRIL 12, 1935, WAS SET ASIDE AND VACATED.

IN VIEW OF THE CIRCUMSTANCES AS STATED ABOVE, THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE CLAIMANT IS THE LAWFUL WIDOW WITHIN THE MEANING OF THE LAW AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER PAYMENT OF THE ATTACHED VOUCHER IS AUTHORIZED.

THE RECORD INDICATES THAT MAJ. PAUL M. N. KYLE, MEDICAL CORPS, WAS ASSIGNED TO DUTY AT HEADQUARTERS NINETEENTH BRIGADE, WASHINGTON, D.C., AND ADDITIONAL DUTY IN CONNECTION WITH RECRUITING AT WASHINGTON, D.C., BEFORE AND DURING THE MONTH OF APRIL 1935. A CARBON COPY OF A DIVORCE DECREE ENTERED IN THE CORPORATION COURT OF THE CITY OF ALEXANDRIA, VA., SHOWS THAT MAJOR KYLE WAS A RESIDENT OF ALEXANDRIA, VA., AND THAT HIS WIFE, JOSEPHINE P. KYLE, A RESIDENT OF WASHINGTON, D.C., WAS GRANTED A DIVORCE A VINCULO MATRIMONII FROM HIM ON APRIL 12, 1935, THOUGH THE DECREE DOES NOT SHOW THE GROUNDS ON WHICH THE DIVORCE WAS GRANTED. THE CARE AND CUSTODY OF RICHARD F. KYLE, AN INFANT SON, WAS AWARDED TO THE COMPLAINANT, HIS MOTHER.

THE DIVORCE A VINCULO MATRIMONII ABSOLUTELY SEPARATED THE PARTIES IN THEIR PERSONS AND PROPERTY RIGHTS, SECTION 5111 OF THE CODE OF VIRGINIA, 1930, PROVIDING IN PERTINENT PART AS FOLLOWS:

* * * UPON THE ENTRY OF A DECREE OF DIVORCE FROM THE BOND OF MATRIMONY, ALL CONTINGENT RIGHTS OF EITHER CONSORT IN THE REAL AND PERSONAL PROPERTY OF THE OTHER THEN EXISTING, OR THEREAFTER ACQUIRED, SHALL BE EXTINGUISHED.

THE DECREE BECAME FINAL AS BETWEEN THE PARTIES UPON THE RISING OF THE CORPORATION COURT OF ALEXANDRIA, VA., FROM ITS APRIL 1935 TERM, FOR ALL PURPOSES SAVE THAT OF REMARRIAGE. IT BECAME FINAL FOR THAT PURPOSE 6 MONTHS FROM ITS DATE, OR OCTOBER 25, 1935, AFTER WHICH TIME EITHER PARTY WAS FREE TO REMARRY AT WILL WITHOUT QUESTION. SECTION 5113, CODE OF VIRGINIA.

UNDER DATE OF MAY 31, 1935, WAR DEPARTMENT SPECIAL ORDERS NO. 127, PARAGRAPH 22, RELIEVED MAJOR KYLE FROM ASSIGNMENT AND DUTY IN WASHINGTON AND ASSIGNED HIM TO STATION AT FITZSIMONS GENERAL HOSPITAL, DENVER, COLO., AND PROVIDED THAT UPON RELIEF FROM TREATMENT AT THAT HOSPITAL HE SHOULD REPORT FOR DUTY ACCORDINGLY.

MAJOR KYLE'S VOUCHER FOR PAY AND ALLOWANCE FOR APRIL 1935 NAMED HIS WIFE, MRS. JOSEPHINE P. KYLE, AS HIS DEPENDENT. ON THIS VOUCHER FOR MAY 1935 PAY AND ALLOWANCE HE NAMED AS DEPENDENTS HIS TWO SONS, PAUL J. KYLE AND RICHARD F. KYLE, AGE 12. ON HIS VOUCHER FOR JUNE 1935, HE NAMED PAUL, 19 YEARS, AND RICHARD F., 12 YEARS. TO HIS VOUCHER THERE WERE ATTACHED A RECEIPT DATED JUNE 4, 1935, FROM JOSEPHINE P. KYLE, ACKNOWLEDGING RECEIPT OF $100 FROM PAUL M. KYLE, M.C., FOR THE CARE, MAINTENANCE, AND SUPPORT OF RICHARD F. AND PAUL J. KYLE FOR THE MONTH OF JUNE 1935, AND THE FOLLOWING TYPEWRITTEN STATEMENT OVER THE SIGNATURE OF PAUL M. KYLE, MAJOR, M.C., U.S. ARMY:

I, PAUL M. KYLE, MAJOR, M.C., U.S.A., CERTIFY THAT PAUL J. AND RICHARD F. KYLE ARE MY LEGITIMATE MINOR CHILDREN AND ARE SOLELY DEPENDENT UPON ME FOR SUPPORT; THAT RICHARD F. KYLE IS NOW IN THE LEGAL CUSTODY OF MRS. JOSEPHINE P. KYLE HIS MOTHER AND THAT ALTHOUGH PAUL J. KYLE IS NOT IN THE LEGAL CUSTODY OF HIS MOTHER, YET HE IS NOW RESIDING WITH HER AT 2517 PENNSYLVANIA AVENUE NW., WASHINGTON, D.C. I FURTHER CERTIFY THAT I WAS DIVORCED FROM JOSEPHINE P. KYLE BY A DECREE OF THE CORPORATION COURT OF THE CITY OF ALEXANDRIA, COMMONWEALTH OF VIRGINIA, ON THE 12TH DAY OF APRIL A.D., 1935, A CERTIFIED COPY OF WHICH DECREE IS FILED WITH VOUCHER NO. 1, JULY 1935 ACCOUNTS OF CAPTAIN GEORGE VAN STUDDIFORD, F.D., FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO. I ALSO FURTHER CERTIFY THAT I AM NOT REQUIRED BY SAID DECREE TO PAY ALIMONY BUT UNDER THE LAWS OF THE STATE OF VIRGINIA MY PARENTAL RESPONSIBILITY FOR THE CARE, MAINTENANCE AND SUPPORT OF THE SAID CHILDREN HAS NOT BEEN MODIFIED OR AFFECTED BY THE DECREE; THAT THE SAID CHILDREN ARE NOT POSSESSED OF PROPERTY ADEQUATE FOR THEIR SUPPORT OR EDUCATION; THAT THEY ARE NOT THE BENEFICIARIES, EITHER DIRECTLY OR THROUGH OTHERS, OF ANY TRUST OR ESTATE ENTITLING THEM TO INCOME ADEQUATE FOR THEIR SUPPORT AND EDUCATION; THAT THEY ARE IN FACT NOW AND AT ALL TIMES SOLELY DEPENDENT UPON ME AND IN ALL RESPECTS I MAINTAIN THEM AT MY OWN EXPENSE AND FROM MY OWN RESOURCES AND AM NOT REIMBURSED THEREFOR DIRECTLY OR INDIRECTLY IN ANY MANNER OR FORM WHATSOEVER (CUSTOMARY GIFTS EXCEPTED); THAT I ACTUALLY AND NECESSARILY FORWARD TO MRS. JOSEPHINE P. KYLE, ONE HUNDRED DOLLARS, ($100.00) MONTHLY, THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00) IS FROM MY OWN PERSONAL FUNDS AND IS FOR THE CARE, MAINTENANCE, SUPPORT AND EDUCATION OF THE SAID CHILDREN AND THAT I HOLD RECEIPTS THEREFOR FROM THE SAID JOSEPHINE P. KYLE, CERTIFIED COPIES ATTACHED HERETO; THAT MY FORMER WIFE THE SAID JOSEPHINE P. KYLE, HAS NOT REMARRIED AND NOW RESIDES AT 2517 PENNSYLVANIA AVE. NW., WASHINGTON, D.C. I AM PREPARED TO SUBSTANTIATE THE RECITATIONS MADE IN THIS CERTIFICATE AND WILL DO SO IF CALLED UPON BY THE SECRETARY OF WAR OR THE GENERAL ACCOUNTING OFFICE.

SIMILAR STATEMENTS WERE ATTACHED TO SUBSEQUENT PAY AND ALLOWANCE VOUCHER THROUGH THE MONTH OF MARCH 1936. ALSO, THERE IS WITH THE PAPERS AN UNDATED PAPER EMBODYING A RECEIPT SIGNED BY JOSEPHINE P. KYLE FOR $100 FOR THE CARE, MAINTENANCE, AND SUPPORT OF RICHARD F. KYLE AND PAUL J. KYLE FOR THE MONTH OF APRIL 1936 AND THE SAME STATEMENT AS QUOTED ABOVE RELATIVE TO DEPENDENTS, OVER THE INITIALS P.M.K., WITNESSED BY D.M. YOUNG, CAPTAIN, M.C., AND JAMES C. VAN VALIN, FIRST LIEUTENANT, M.C., ON WHICH APPEARS THE TYPEWRITTEN NOTATION THAT "PATIENT IS PARTLY RATIONAL.' IT IS TO BE PRESUMED THAT THIS INSTRUMENT WAS INTENDED FOR USE IN CONNECTION WITH THE OFFICER'S PAY AND ALLOWANCE VOUCHER FOR THE MONTH OF APRIL 1936, AND THAT IT WAS INITIALED BY HIM AND WITNESSED BY HIS BROTHER OFFICERS SHORTLY BEFORE HIS DEATH, WHICH OCCURRED ON MAY 1, 1936.

IT APPEARS FROM THE RECORD THAT THE COURT GRANTING THE DIVORCE HAD JURISDICTION OF THE PARTIES, AND IT IS NOT SHOWN IN THE FILE THAT ANY FRAUD OR MISREPRESENTATION ON THE PART OF MAJOR KYLE TAINTED OR VITIATED THE DIVORCE PROCEEDINGS; THAT VERY SHORTLY AFTER THE DIVORCE WAS GRANTED MAJOR KYLE SPECIFICALLY DECLARED HIS FINAL DIVORCE FROM HIS FORMER WIFE AND HIS RELEASE FROM FURTHER RESPONSIBILITY FOR HER SUPPORT AND MAINTENANCE, AND NAMED HIS TWO INFANT SONS AS HIS DEPENDENTS; THAT HIS FORMER WIFE CONCURRED IN THAT ATTITUDE, ACCEPTING THE $100 PER MONTH FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN; THAT BOTH HE AND SHE RECOGNIZED, ACCEPTED, AND ACTED IN CONFORMITY WITH THE DECREE, IN RELIANCE ON ITS VALIDITY AND WITH FULL KNOWLEDGE OF ITS EFFECT, FOR 12 MONTHS AFTER IT HAD BEEN RENDERED. SO FAR AS THE RECORD DISCLOSES, DURING ALL OF THAT TIME THIS OFFICER HANDLED HIS PERSONAL AFFAIRS IN A PERFECTLY RATIONAL MANNER UNTIL THE VERY EVE OF HIS DECEASE, AND APPARENTLY EVEN IN EXTREMIS WAS "PARTLY RATIONAL.' THERE IS NOTHING IN THE RECORD TO SHOW THAT MAJOR KYLE'S SANITY WAS QUESTIONED AT ANY TIME PRIOR TO OR DURING THE DIVORCE PROCEEDING, OR IN FACT SUBSEQUENT TO THE DECREE AND PRIOR TO HIS DEATH. NOR DOES THE RECORD DISCLOSE THAT JOSEPHINE P. KYLE, THE DIVORCED WIFE, HAS AT ANY TIME RAISED ANY QUESTION AS TO THE SANITY OF MAJOR KYLE BEFORE, DURING, OR SUBSEQUENT TO THE PROCEEDINGS, OR AT ANY TIME QUESTIONED THE VALIDITY OF THE DECREE BY WHICH SHE WAS DIVORCED FROM HIM.

THERE IS WITH THE PAPERS AN UNDATED CARBON COPY READING AS FOLLOWS:

IN THE CORPORATION COURT OF THE CITY OF ALEXANDRIA

VIRGINIA

JOSEPHINE P. KYLE, COMPLAINANT

VS.

PAUL M. KYLE, DEFENDANT

THIS CAUSE COMING ON THIS DAY TO BE HEARD UPON THE PROCEEDINGS HERETOFORE HAD HEREIN AND UPON THE PETITION OF PAUL J. KYLE, AND ALL PARTIES IN INTEREST BEING BEFORE THE COURT, AND UPON THE TESTIMONY OF PAUL J. KYLE AND MAJOR JAMES OWEN, U.S.A., AND THE DEPOSITION OF COLONEL CARROLL D. BUCK, U.S.A., AND IT APPEARING TO THE COURT THAT A DECREE WAS ENTERED IN THIS CAUSE ON APRIL 12, 1935, GRANTING THE COMPLAINANT A DIVORCE A VINCULO MATRIMONII FROM THE DEFENDANT; THAT AT THE TIME THIS SUIT WAS INSTITUTED AGAINST THE DEFENDANT AND DURING ITS PROGRESS, AND CONTINUOUSLY THEREAFTER UNTIL HIS DEATH, THE DEFENDANT WAS OF UNSOUND MIND; THAT NO GUARDIAN AD LITEM WAS APPOINTED FOR HIM IN THIS SUIT; THAT THE DEFENDANT PAUL M. KYLE HAS SINCE DIED, ON TO WIT, MAY 1, 1936; AND THE COURT BEING OF THE OPINION THAT THE SAID DECREE OF APRIL 12, 1935, SHOULD BE VACATED AND DECLARED OF NO EFFECT.

UPON CONSIDERATION WHEREOF, THE COURT DOTH ADJUDGE, ORDER, AND DECREE THAT THE SAID DECREE OF APRIL 12, 1935, IS HEREBY SET ASIDE AND VACATED AND THERE BEING NOTHING FURTHER TO BE DONE IN THIS CAUSE, THIS CAUSE IS HEREBY DISMISSED FROM THE DOCKET.

ASSUMING THE AUTHENTICITY OF THIS PAPER, THERE IS NO EVIDENCE AS TO ANTECEDENT PROCEEDINGS, WHEN OR HOW THE "PETITION OF PAUL J. KYLE" WAS BROUGHT BEFORE THE COURT, WHETHER IT WAS FILED BEFORE OR AFTER PAUL J. KYLE REACHED HIS MAJORITY, IF HE HAS, OR WHO WERE "ALL PARTIES IN INTEREST BEING BEFORE THE COURT.'

FURTHERMORE, RICHARD F. KYLE, THE INFANT SON OF MAJOR KYLE, HAD AND HAS A VITAL INTEREST IN ANY SUCH PROCEEDINGS, AND THERE IS NO SHOWING THAT HE WAS MADE PARTY THERETO AND REPRESENTED BY GUARDIAN AD LITEM.

IF THE PETITION OF PAUL J. KYLE WAS FILED BEFORE HE REACHED HIS MAJORITY, UNDER THE PROCEDURE IN VIRGINIA IT COULD ONLY BE DONE BY NEXT FRIEND. VIRGINIA CODE, 1930, SECTION 5331. IF IT WAS FILED AFTER HE REACHED HIS MAJORITY, HIS INTEREST IN SUCH A PROCEEDING IS NOT APPARENT. HE WAS NOT A PARTY TO THE DIVORCE PROCEEDINGS, AND IT WOULD NOT APPEAR THAT HE HAD ANY SUCH INTEREST IN THE PROCEEDINGS AS WOULD ENTITLE HIM TO INTERVENE, AFTER THE DIVORCE HAD BEEN ACCEPTED AND ACTED UPON FOR MORE THAN A YEAR BY BOTH HIS MOTHER AND HIS FATHER, AND AFTER THE DEATH OF HIS FATHER, FOR THE PURPOSE OF HAVING THE DIVORCE DECREE VACATED FOR ANY REASON.

THE RULE IS STATED IN 19 CORPUS JURIS 171, THAT ORDINARILY THE RIGHT TO HAVE AN INVALID DECREE SET ASIDE EXISTS ONLY IN FAVOR OF THE INJURED SPOUSE--- THAT IS, THE SPOUSE INJURED BY THE ENTRY OF THE ERRONEOUS DECREE --- THAT THE RIGHT DOES NOT EXIST IN A PERSON WHO WAS A STRANGER TO THE SUIT, AND THAT IT HAS BEEN HELD THAT THIS INCLUDES INFANT CHILDREN OF THE DIVORCED PARTIES. ALSO, IT HAS BEEN HELD THAT A SON CANNOT IMPEACH A DECREE OF DIVORCE, EVEN ON THE GROUND OF FRAUD. 19 CORPUS JURIS 171, AND NOTES 91 AND 92.

THERE APPEARS TO BE NO STATUTORY AUTHORITY UNDER THE LAWS OF VIRGINIA FOR SUCH A PROCEEDING AS HERE UNDERTAKEN, AND THERE HAS BEEN FOUND NO REPORTED CASE IN THE STATE LENDING SANCTION THERETO. AN EXAMINATION OF THE AUTHORITIES SHOWS, ON THE OTHER HAND, THAT THE COURTS HAVE BEEN LOATH TO DISTURB A FINAL DIVORCE DECREE, EVEN AT THE INSTANCE OF THE PARTY INJURED BY ITS ENTRY, WHERE THE COURT GRANTING THE DECREE HAD JURISDICTION OF THE PARTIES, AS IN THIS INSTANCE, AND WHERE THE PARTIES TO THE DIVORCE SUIT HAVE ACCEPTED THE DECREE AND ACTED IN RELIANCE ON ITS VALIDITY. PARTICULARLY IS THIS TRUE WHEN DEATH HAS INTERVENED AS TO EITHER PARTY. AND THERE HAS NOT BEEN FOUND ANY CASE IN WHICH SUCH A DECREE HAS BEEN VACATED AT THE INSTANCE OF THE PARTY AT WHOSE INSTANCE IT WAS ENTERED. MCELRATH V. LITTELL, REPORTED 44 L.R.A.N.S. 505 AND NOTE. ROBINSON V. ROBINSON, REPORTED 51 L.R.A.N.S. 534 AND NOTE. A FORTIORI WOULD IT APPEAR THAT SUCH A DECREE SHOULD NOT BE VACATED AT THE INSTANCE OF A STRANGER TO THE PROCEEDINGS IN THE ABSENCE OF QUESTION BY EITHER PARTY THERETO.

AS TO THE STATEMENT IN THE PURPORTED DECREE, SUPRA, THAT MAJOR KYLE WAS OF UNSOUND MIND DURING THE PROGRESS OF THE DIVORCE SUIT, AND THAT NO GUARDIAN AD LITEM WAS APPOINTED FOR HIM, VIRGINIA CODE, 1930, SECTION 5103, PROVIDES IN PERTINENT PART AS FOLLOWS: WHEN THE SUIT IS FOR DIVORCE FROM THE BOND OF MATRIMONY FOR WILFUL DESERTION OR ABANDONMENT, IT SHALL BE NO DEFENSE THAT THE GUILTY PARTY HAS, SINCE THE COMMENCEMENT OF SUCH DESERTION, AND WITHIN THREE YEARS THEREAFTER, BECOME AND HAS BEEN ADJUDGED INSANE, BUT AT THE EXPIRATION OF THREE YEARS FROM THE COMMENCEMENT OF SUCH DESERTION THE GROUND FOR DIVORCE SHALL BE DEEMED TO BE COMPLETE, AND THE COMMITTEE OF THE INSANE DEFENDANT, IF THERE BE ONE, SHALL BE MADE A PARTY TO THE CAUSE, OR IF THERE BE NO COMMITTEE, THEN THE COURT SHALL APPOINT A GUARDIAN AD LITEM TO REPRESENT THE INSANE DEFENDANT. THIS PARAGRAPH SHALL APPLY WHETHER THE DESERTION OR ABANDONMENT COMMENCED HERETOFORE OR SHALL COMMENCE HEREAFTER (ACT OF ASSEMBLY, 1926, PAGES 868-69).

THERE IS NO EVIDENCE THAT MAJOR KYLE WAS ADJUDGED INSANE PRIOR TO, DURING, OR SUBSEQUENT TO THE SUIT. IT WOULD APPEAR THAT THE QUOTED STATUTE WAS NOT FOR APPLICATION, AND THAT UNDER THE CIRCUMSTANCES THE FACT THAT A GUARDIAN AD LITEM WAS NOT APPOINTED FOR MAJOR KYLE WOULD AFFORD NO GROUND FOR VACATING THE DECREE AGAINST HIM.

IN VIEW OF THE GREAT WEIGHT OF AUTHORITY TO THE CONTRARY AND THE APPARENTLY DOUBTFUL REGULARITY OF THE PROCEEDINGS, IF ANY, LEADING TO THE ENTRY OF A DECREE VACATING THE DIVORCE, IT IS DOUBTFUL IF ANY WEIGHT SHOULD BE GIVEN TO SUCH DECREE IN THE ABSENCE OF A COMPLETE RECORD CLEARLY ESTABLISHING THE LEGALITY OF SUCH PROCEEDINGS AND THE CORRECTNESS OF SUCH DECREE.

SO FAR AS THE RECORD BEFORE THIS OFFICE DISCLOSES JOSEPHINE P. KYLE WAS GRANTED AN ABSOLUTE DIVORCE FROM PAUL M. N. KYLE MORE THAN 12 MONTHS PRECEDING HIS DEATH. SHE WAS THE COMPLAINANT IN THE DIVORCE SUIT. SHE RECOGNIZED THE DIVORCE DECREE, AND ACTED IN RELIANCE ON ITS VALIDITY WITH FULL KNOWLEDGE OF ITS EFFECT FROM THAT TIME UNTIL THE DEATH OF MAJOR KYLE. HER RIGHTS IN HIS PROPERTY AND HER RIGHTS AS A DEPENDENT OF MAJOR KYLE HAD BEEN EXTINGUISHED BY THE DECREE, AND HER SUBSEQUENT CONDUCT WAS ENTIRELY IN ACCORD THEREWITH. AT THE DATE OF MAJOR KYLE'S DEATH SHE WAS NOT A DEPENDENT, AND NOT HIS WIFE. UPON THE DEATH OF MAJOR KYLE SHE WAS NOT HIS WIDOW, AND THEREFORE NOT ENTITLED TO RECEIVE THE BENEFIT PRESCRIBED BY THE STATUTE, UNITED STATES C.A. TITLE 10, SECTION 903. SEE GENERALLY IN THIS CONNECTION WORDS AND PHRASES, FIRST, SECOND, AND THIRD SERIES, CITING NUMEROUS CASES, INDICATING THAT THE COURTS ARE WELL NIGH UNANIMOUS TO THE EFFECT THAT "A WIDOW IS A MARRIED WOMAN WHO HAS LOST HER HUSBAND BY DEATH AND HAS NOT REMARRIED," AND THAT THE TERM HAS NO APPLICATION TO A WOMAN WHO HAS BEEN DIVORCED.

SINCE ON THE PRESENT RECORD IT IS NOT POSSIBLE TO CONCLUDE THAT MRS. JOSEPHINE P. KYLE WAS THE WIDOW OF PAUL M. N. KYLE, SHE IS NOT ENTITLED TO THE 6 MONTHS' GRATUITY PRESCRIBED BY THE STATUTE, AND IT WOULD NOT APPEAR THAT ANY PROCEEDINGS UNDERTAKEN AFTER THE DEATH OF MAJOR KYLE, EITHER DIRECTLY BY MRS. KYLE, OR INDIRECTLY THROUGH ANOTHER, OR BY A STRANGER TO THE DIVORCE ACTION WOULD BE SUFFICIENT TO REINSTATE HER MARITAL RIGHTS SO AS TO ENTITLE HER TO BENEFITS PAYABLE AS TO THE WIDOW OF MAJOR KYLE.

ACCORDINGLY YOU ARE INFORMED THAT, UPON THE PRESENT RECORD, PAYMENT OF THE 6 MONTHS' GRATUITY TO MRS. JOSEPHINE P. KYLE IS NOT AUTHORIZED.

THE CONCLUSION HERE REACHED IS, OF COURSE, WITHOUT PREJUDICE TO THE RIGHT OF A DULY ACCREDITED GUARDIAN OF THE INFANT SON OR SONS OF MAJOR KYLE TO SUBMIT A CLAIM FOR THE AMOUNT INVOLVED.