B-117183, MARCH 4, 1955, 34 COMP. GEN. 415

B-117183, MARCH 4, 1955, 34 COMP. GEN. 415

SIX MONTHS' DEATH GRATUITY - ILLEGITIMATE CHILD BORN AFTER DEATH OF SERVICEMAN THE RIGHT OF AN ILLEGITIMATE CHILD TO THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920, IS NOT DEFEATED BY THE FACT THAT THE CHILD WAS UNBORN ON THE DATE OF NOTIFICATION OF THE DEATH OF A MARINE CORPS ENLISTED MAN WHO HAD ACKNOWLEDGED IN WRITING THE PATERNITY OF THE CHILD BEFORE HIS DEATH, THEREFORE, AS THE DECEDENT WAS NOT SURVIVED BY A WIDOW, THE CHILD TAKES PRECEDENCE OVER ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED AS BENEFICIARY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO JAMES M. WEIDNER, UNITED STATES MARINE CORPS, MARCH 4, 1955:

YOUR LETTER OF SEPTEMBER 15, 1953, REQUESTED A DECISION AS TO WHETHER THE SIX MONTHS' DEATH GRATUITY MAY BE PAID IN THE CASE OF M. W. B., PRIVATE FIRST CLASS, 1,325,365, U.S. MARINE CORPS, TO THE LEGAL GUARDIAN OF HIS MINOR CHILD.

IT APPEARS THAT ON MARCH 11, 1952, M. W. B., ENLISTED IN THE UNITED STATES MARINE CORPS AND THAT ON OCTOBER 27, 1952, HE DESIGNATED F. B., MOTHER, AS THE DEPENDENT RELATIVE TO RECEIVE THE SIX MONTHS' DEATH GRATUITY. HE WAS KILLED IN ACTION ON APRIL 2, 1953, IN KOREA. IT FURTHER APPEARS THAT AS THE RESULT OF AN INQUIRY DATED JANUARY 8, 1953, FROM MISS V. N., TO THE COMMANDANT OF THE MARINE CORPS, CONCERNING PAYMENT BY THE ENLISTED MAN OF THE EXPENSES OF HER CONFINEMENT AND THE SUBSEQUENT SUPPORT OF HER UNBORN CHILD, THE DECEDENT, ON FEBRUARY 6, 1953, STATED OVER HIS HANDWRITTEN SIGNATURE THAT HE FELT CERTAIN HE WAS THE FATHER OF MISS N'S UNBORN CHILD AND THAT, IF SHE SO DESIRED, HE WOULD INITIATE A REQUEST FOR EMERGENCY LEAVE TO RETURN TO THE UNITED STATES AND MARRY HER, GIVE THE CHILD HIS NAME, AND BEAR ALL THE EXPENSES INCIDENT TO ITS BIRTH AND LATER SUPPORT. COPIES OF A CERTIFICATE OF BIRTH REGISTRATION AND LETTERS OF GUARDIANSHIP SHOW THAT ON JUNE 13, 1953, A DAUGHTER, M. D. B., WAS BORN TO V. M. N. AND M. W. B., AND THAT ON JULY 14, 1953, C. C. WAS APPOINTED GENERAL GUARDIAN OF THE PERSON AND PROPERTY OF M. D. B. BY THE SURROGATE'S COURT OF GREENE COUNTY, NEW YORK. OFFICIAL NOTIFICATION OF THE DECEDENT'S DEATH WAS RECEIVED APRIL 3, 1953, PRIOR TO THE BIRTH OF HIS CHILD.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, PROVIDES THAT " IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH" OF A MEMBER OF THE MARINE CORPS, LEAVING NO WIDOW OR CHILD, THERE SHALL BE PAID TO ANY OTHER "DEPENDENT RELATIVE" PREVIOUSLY DESIGNATED BY THE MEMBER AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE THE MEMBER WAS RECEIVING AT THE TIME OF DEATH. UNDER THE ACT THE WIDOW OF THE DECEDENT (IF ANY) HAS A PRIMARY RIGHT TO THE GRATUITY. IF THERE BE NO WIDOW, PAYMENT IS TO BE MADE TO THE DECEDENT'S CHILD OR CHILDREN AND, IF THERE BE NO WIDOW OR CHILD, PAYMENT IS AUTHORIZED TO ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED.

IN DECISION OF JANUARY 10, 1951, B-93064, 30 COMP. GEN. 277, 280, REFERRED TO IN YOUR LETTER, IT WAS HELD THAT THE SIX MONTHS' DEATH GRATUITY STATUTES SHOULD BE VIEWED AS INCLUDING ILLEGITIMATE CHILDREN WHERE SUCH RELATIONSHIP IS PROPERLY ESTABLISHED. REGARDING THE RIGHTS OF UNBORN CHILDREN, THE CASE OF IN RE SEABOLT, 113 F. 766, 771, MAKES THE FOLLOWING STATEMENT:

A CHILD IN VENTRE SA MERE IS A CHILD WHILE YET UNBORN. FROM THE TIME OF CONCEPTION THE INFANT IS IN ESSE FOR THE PURPOSE OF TAKING ANY ESTATE WHICH IS FOR HIS INTEREST * * *. THE EARLY ENGLISH DOCTRINE THAT AN UNBORN CHILD IS NOT TO BE REGARDED AS IN ESSE HAS BEEN LONG AGO EXPLODED, AND THE DECISIONS OF THE COURTS NOW ARE UNIFORMLY TO THE EFFECT THAT CHILDREN IN VENTRE SA MERE ARE INCLUDED WITHIN THE MEANING OF THE WORD "CHILDREN.' THIS PRINCIPLE IS SO WELL ESTABLISHED AND SO FULLY UNDERSTOOD BY THE PROFESSION THAT IT IS NOT DEEMED NECESSARY TO CITE AUTHORITIES TO SUPPORT IT.

THE LAWS OF THE STATE OF NEW YORK--- THE APPARENT DOMICILE OF THE PARTIES HERE INVOLVED--- PROVIDE THAT THE FATHER OF AN ILLEGITIMATE CHILD IS LIABLE FOR ITS SUPPORT. DOMESTIC RELATIONS LAW, SECTIONS 119 139. PROCEEDINGS TO DETERMINE THE PATERNITY AND LIABILITY FOR THE SUPPORT OF CHILD AFTER BIRTH, THE COURTS OF NEW YORK HAVE CONSTRUED THE WORD "CHILD," AS USED IN NEW YORK STATUTES, TO INCLUDE AN UNBORN CHILD. SEE THOMSON V. ELLIOTT, 152 MISC. 188, 273, N.Y.S. 898, 902.

SINCE THE DECEDENT IN THIS CASE IS NOT SURVIVED BY A WIDOW, BUT IS SURVIVED BY A CHILD, THE RIGHTS OF THAT CHILD TAKE PRECEDENCE OVER ALLEGED RIGHTS OF ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED BY HIM. THE RELATIONSHIP OF THE CHILD BEING SUFFICIENTLY ESTABLISHED BY THE DECEDENT'S WRITTEN ACKNOWLEDGMENT, THE FACT THAT SHE WAS UNBORN ON THE DATE OF NOTIFICATION OF HIS DEATH DOES NOT DEFEAT HER RIGHT TO SIX MONTHS' DEATH GRATUITY. PAYMENT ON THE CLAIM OF THE LEGAL GUARDIAN OF THE CHILD IS AUTHORIZED ACCORDINGLY.

THE CLAIM AND SUPPORTING PAPERS SUBMITTED WITH YOUR LETTER ARE ENCLOSED.