B-113147, MAY 29, 1953

B-113147: May 29, 1953

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REQUESTING AN ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MRS. THE PAPERS ACCOMPANYING THE VOUCHER INDICATE THAT THE CLAIMANT AND THE DECEDENT WERE NOT RELATED BY BLOOD BUT THAT BOTH WERE LEGALLY ADOPTED IN THEIR CHILDHOOD. AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE HE WAS RECEIVING AT THE TIME OF HIS DEATH. THAT THE CLAIMANT WAS HIS DESIGNATED BENEFICIARY. HOLDING THAT AN ADOPTIVE SISTER WAS NOT A RELATIVE OF THE DECEASED WITHIN THE GRATUITY STATUTE. SINCE THERE IS NO RELATIONSHIP EITHER BY BLOOD OR AFFINITY BETWEEN AN ENLISTED MAN AND HIS STEPBROTHER. IS NOT CONSIDERED AS A RELATIVE WITHIN SAID STATUTE. SECTION 259.07) PROVIDES THAT AN ADOPTED CHILD "SHALL INHERIT FROM HIS ADOPTING PARENTS OR THEIR RELATIVES THE SAME AS THOUGH HE WERE THE LEGITIMATE CHILD OF SUCH PARENTS *** AND.

B-113147, MAY 29, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J.A. DELL ANGELO, USAF:

BY LETTER DATED DECEMBER 12, 1952, THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, REFERRED TO THIS OFFICE YOUR LETTER OF OCTOBER 29, 1952, REQUESTING AN ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MRS. JO ANN S. BURDICK, ADOPTIVE SISTER AND DESIGNATED BENEFICIARY OF WARD L. STARKWEATHER, DECEASED, LATE FIRST LIEUTENANT, AO 1 910 013, USAF, FOR $2,241.78, REPRESENTED AS EQUAL TO THE PAY OF THE DECEASED FOR SIX MONTHS, THE CLAIM ARISING UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903. THE PAPERS ACCOMPANYING THE VOUCHER INDICATE THAT THE CLAIMANT AND THE DECEDENT WERE NOT RELATED BY BLOOD BUT THAT BOTH WERE LEGALLY ADOPTED IN THEIR CHILDHOOD, UNDER THE LAWS OF MINNESOTA, BY MRS. JULIET STARKWEATHER OF DULUTH, MINNESOTA.

THE ACT OF DECEMBER 17, 1919, AS AMENDED (APPLICABLE TO THE ARMY AND THE AIR FORCE), PROVIDES, INTER ALIA, THAT WHEN ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST DIES FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, LEAVING NO WIDOW OR CHILD, THERE SHALL BE PAID TO ANY OTHER "DEPENDENT RELATIVE" PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE HE WAS RECEIVING AT THE TIME OF HIS DEATH.

IT APPEARS THAT THE OFFICER DIED DECEMBER 28, 1951, IN KOREA, AND THAT THE CLAIMANT WAS HIS DESIGNATED BENEFICIARY. ALSO, IT APPEARS FROM YOUR LETTER THAT YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT ARISES FROM DECISIONS OF THIS OFFICE, B-56270, DATED NOVEMBER 6, 1946, HOLDING THAT AN ADOPTIVE SISTER WAS NOT A RELATIVE OF THE DECEASED WITHIN THE GRATUITY STATUTE, AND 25 COMP. GEN. 725, HOLDING THAT, SINCE THERE IS NO RELATIONSHIP EITHER BY BLOOD OR AFFINITY BETWEEN AN ENLISTED MAN AND HIS STEPBROTHER, A STEPBROTHER, LIKEWISE, IS NOT CONSIDERED AS A RELATIVE WITHIN SAID STATUTE.

THE ADOPTION LAW OF MINNESOTA (MINNESOTA STATUTES, 1949, SECTION 259.07) PROVIDES THAT AN ADOPTED CHILD "SHALL INHERIT FROM HIS ADOPTING PARENTS OR THEIR RELATIVES THE SAME AS THOUGH HE WERE THE LEGITIMATE CHILD OF SUCH PARENTS *** AND, IN CASE OF HIS DEATH INTESTATE, THE ADOPTING PARENTS AND THEIR RELATIVES SHALL INHERIT HIS ESTATE AS IF THEY HAD BEEN HIS PARENTS AND RELATIVES IN FACT." THE DECISIONS OF THE COURTS OF MINNESOTA ARE TO THE EFFECT THAT, WITH RESPECT TO INHERITANCE, THE STATUS OF AN ADOPTED CHILD DOES NOT DIFFER FROM THAT OF THE "NATURAL CHILDREN" OF THE ADOPTING PARENTS. SEE IN RE SUTTON'S ESTATE, 201 N.W. 925, 161 MINN. 426, HOLDING THAT AN ADOPTED CHILD INHERITS BY RIGHT OF REPRESENTATION FROM RELATIVES OF THE ADOPTIVE PARENTS. IN THE CASE OF MCKEOWN V. ARGETSINGER, 279 N.W. 402, 202 MINN. 595, THE COURT INDICATED THAT THE ADOPTION LAW OF MASSACHUSETTS WAS "SIMILAR" TO THE ADOPTION LAW OF MINNESOTA. THERE IS A MASSACHUSETTS CASE - THAT OF O'CONNELL V. POWERS, 197 N.E. 162 - WHICH IS TO THE EFFECT THAT TWO UNRELATED CHILDREN EACH ADOPTED BY THE SAME PARENTS ARE, WITH REGARD TO EACH OTHER, BROTHER AND SISTER, JUST AS MUCH AS ARE NATURAL CHILDREN OF THE SAME PARENTS. THE MCKEOWN CASE, SUPRA, HOLDS THAT ADOPTED CHILDREN ARE "NEXT OF KIN" WITHIN THE MEANING OF A STATUTE PERMITTING RECOVERY FOR WRONGFUL DEATH. IN THE CASE OF IN RE HOLDEN'S TRUST, 291 N.W. 104, 207 MINN. 211, THE COURT CONSIDERED THAT ADOPTED CHILDREN ARE "ISSUE"; "CHILD OF THE BODY"; "HEIR"; "NEXT OF KIN"; AND "LINEAL DESCENDANT."

THUS THE MINNESOTA ADOPTION LAW, AS CONSTRUED BY THE COURTS OF THAT STATE, SEEMS TO REQUIRE THE CONCLUSION THAT TWO CHILDREN - THOUGH NOT OTHERWISE RELATED - ARE, WHEN ADOPTED BY THE SAME PARENTS, BROTHER AND SISTER TO EACH OTHER AND MAY INHERIT FROM EACH OTHER; ALSO, THAT THEY ARE "RELATIVES" OF EACH OTHER AND HAVE AN INSURABLE INTEREST IN EACH OTHER ON THE BASIS OF EACH BEING A POTENTIAL HEIR OF THE OTHER.

THE PRESENT CASE IS DISTINGUISHABLE FROM THE CALIFORNIA CASE CONSIDERED IN B-56270, DATED NOVEMBER 6, 1946, FOR THE REASON THAT IN CALIFORNIA AN ADOPTED CHILD DOES NOT BECOME A BROTHER OR SISTER OF OTHER CHILDREN OF THE ADOPTIVE PARENTS. ALSO, THERE IS A DISTINCTION BETWEEN THE "LEGAL" RELATIONSHIP OF BROTHER AND SISTER CREATED UNDER THE MINNESOTA ADOPTION LAW AND THE RELATIONSHIP OF STEPBROTHERS RESULTING FROM A MARRIAGE OF THE PARENTS OF TWO UNRELATED INDIVIDUALS.

IN VIEW OF THE FOREGOING, THE CLAIMANT, ADOPTIVE SISTER OF THE DECEDENT, MAY BE CONSIDERED A "DEPENDENT RELATIVE" WITHIN THE MEANING OF THE ACT OF DECEMBER 17, 1919, AS AMENDED.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.