B-139243, JUN 8, 1959

B-139243: Jun 8, 1959

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ARMED FORCES OF THE PHILIPPINES: REFERENCE IS MADE TO LETTER OF YOUR OFFICE DATED APRIL 28. THE APPLICATION OF REYNALDA IS SUPPORTED BY A COPY OF A MARRIAGE CONTRACT BETWEEN HER AND THE DECEDENT SHOWING THEIR MARRIAGE ON FEBRUARY 15. THAT AT THE TIME OF HIS DEATH THEIR MARRIAGE WAS LEGAL AND SUBSISTING AND HAD NOT BEEN TERMINATED OR DISSOLVED. ABANDONED HER SHE WAS IN DESTITUTE CIRCUMSTANCES BECAUSE OF THE WAR CONDITIONS. THAT SHE WAS GIVEN ASSISTANCE BY ONE EDUARDO ISIP WITH WHOM SHE LIVED AS HUSBAND AND WIFE FROM SOMETIME IN 1944 UP TO SOMETIME IN 1952. ALTHOUGH THERE WAS NO MARRIAGE. THAT AS A RESULT OF SUCH RELATIONSHIP THREE CHILDREN WERE BORN. THE RECORD SHOWS THAT EDUARDO ISIP AND TOMANA DULAY WERE MARRIED ON MAY 5.

B-139243, JUN 8, 1959

PRECIS-UNAVAILABLE

JUDGE ADVOCATE GENERAL, ARMED FORCES OF THE PHILIPPINES:

REFERENCE IS MADE TO LETTER OF YOUR OFFICE DATED APRIL 28, 1955, SIGNED BY CAPTAIN ANTONIO S. VINLUAN, CHIEF, CLAIMS BRANCH, MAKING CLAIM ON YOUR BEHALF AS ADMINISTRATOR UNDER PHILIPPINE REPUBLIC ACT NO. 136, AS AMENDED, FOR ARREARS OF PAY AND ALLOWANCE DUE THE ESTATE OF THE LATE BENIGNO SICO, WHO DIED MAY 26, 1954, WHILE SERVING AS AN ENLISTED MAN, UNITED STATES NAVY.

PREVIOUSLY, BY LETTER DATED MARCH 4, 1955, THE DEPARTMENT OF THE NAVY FORWARDED HERE APPLICATIONS BY LUCIA COSTA SICO, DASARINAS, CAVITE, AND REYNALDA SIMMONS SICO, 3-A SAMPALOC AVENUE, QUEZON CITY, FOR THE ARREARS OF PAY AND ALLOWANCES, AND THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THE DECEASED ENLISTED MAN.

THE APPLICATION OF REYNALDA IS SUPPORTED BY A COPY OF A MARRIAGE CONTRACT BETWEEN HER AND THE DECEDENT SHOWING THEIR MARRIAGE ON FEBRUARY 15, 1941, BY MARIANO NABLE, JUDGE, MUNICIPAL COURT, CITY OF MANILA; BY HER AFFIDAVIT EXECUTED SEPTEMBER 1, 1954, TO THE EFFECT THAT THE DECEDENT LEFT HER IMMEDIATELY PRIOR TO DECEMBER 8, 1941, AND NEVER RETURNED, AND THAT AT THE TIME OF HIS DEATH THEIR MARRIAGE WAS LEGAL AND SUBSISTING AND HAD NOT BEEN TERMINATED OR DISSOLVED. IN A LETTER DATED NOVEMBER 11, 1954, REYNALDA STATED THAT AFTER HER HUSBAND, BENIGNO SICO, ABANDONED HER SHE WAS IN DESTITUTE CIRCUMSTANCES BECAUSE OF THE WAR CONDITIONS; THAT SHE WAS GIVEN ASSISTANCE BY ONE EDUARDO ISIP WITH WHOM SHE LIVED AS HUSBAND AND WIFE FROM SOMETIME IN 1944 UP TO SOMETIME IN 1952, ALTHOUGH THERE WAS NO MARRIAGE, EACH HAVING ANOTHER SPOUSE, AND THAT AS A RESULT OF SUCH RELATIONSHIP THREE CHILDREN WERE BORN. THE RECORD SHOWS THAT EDUARDO ISIP AND TOMANA DULAY WERE MARRIED ON MAY 5, 1935. HE DIED ON NOVEMBER 27, 1952.

THE APPLICATION OF LUCIA IS SUPPORTED BY A COPY OF A MARRIAGE CONTRACT BETWEEN HER AND THE DECEDENT SHOWING THEIR MARRIAGE ON JANUARY 19, 1948, BY THE REVEREND FATHER PEDRO R. VICEDO, PARISH PRIEST, IMUS CATHOLIC CHURCH, IMUS, CAVITE; BY HER AFFIDAVIT EXECUTED AUGUST 26, 1954, TO THE EFFECT THAT HER MARRIAGE TO THE DECEDENT WAS NEVER LEGALLY TERMINATED PRIOR TO HIS DEATH; AND BY BIRTH CERTIFICATES FOR THREE CHILDREN BORN TO HER AND NAMING THE DECEDENT AS THEIR FATHER. ON FORM DD 93, RECORD OF EMERGENCY DATA FOR THE ARMED FORCES OF THE UNITED STATES, EXECUTED BY THE ENLISTED MAN ON SEPTEMBER 30, 1953, HE LISTED LUCIA C. SICO AS HIS WIFE.

BY LETTER DATED JUNE 20, 1955, OUR CLAIMS DIVISION ADVISED YOU THAT THE DECEDENT WAS CREDITED WITH BASIC ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF A DEPENDENT WIFE, LUCIA, AND HER MINOR CHILDREN, AND THAT SINCE THERE WAS DOUBT AS TO THE LEGALITY OF HER MARRIAGE TO HIM, PAYMENT OF SUCH ALLOWANCES MIGHT CONSTITUTE AN OVERPAYMENT IN HIS ACCOUNT, AND ACTION ON YOUR CLAIM MUST AWAIT A LEGAL DETERMINATION OF HER TRUE MARITAL STATUS BY A COURT OF COMPETENT JURISDICTION. SUBSEQUENTLY, IN A LETTER DATED SEPTEMBER 13, 1955, SIGNED BY CAPTAIN VINLUAN, IT WAS STATED THAT, ASSUMING THAT THE DECEDENT WAS MARRIED TO TWO WOMEN DURING HIS LIFETIME, UNDER PHILIPPINE LAW IT IS POSSIBLE THAT BOTH WOMEN UNDER CERTAIN CONDITIONS MIGHT BE ENTITLED TO SHARE IN HIS ESTATE. IT WAS FURTHER STATED THAT IF SETTLEMENT WERE ISSUED TO YOU FOR THE AMOUNT DUE THE ESTATE AND YOU FOUND IT NECESSARY TO INSTITUTE A COURT ACTION TO COMPEL THE PARTIES TO INTERPLEAD, SUCH ACTION WOULD BE FILED BY YOU. BY LETTER DATED OCTOBER 19, 1955, THE CLAIMS DIVISION ADVISED YOU THAT THE ARREARS OF PAY AND ALLOWANCES AMOUNTED TO $45.05 AND THAT IF THE DECEDENT'S MARRIAGE TO LUCIA WAS ILLEGAL, THE QUARTERS ALLOWANCE CREDITED TO HIM ON ACCOUNT OF LUCIA AND THE MINOR CHILDREN WOULD EXCEED THE AMOUNT DUE THE ESTATE.

THERE IS PENDING BEFORE US A REQUEST BY LUCIA FOR FURTHER CONSIDERATION OF HER CLAIM AS WIDOW FOR THE SIX MONTHS' DEATH GRATUITY, THE CLAIMS DIVISION HAVING PREVIOUSLY ADVISED HER AND REYNALDA, BY SEPARATE LETTERS DATED MARCH 18, 1955, THAT PAYMENT OF THEIR CLAIMS FOR THE GRATUITY WOULD BE HELD IN ABEYANCE PENDING A LEGAL DETERMINATION AS TO THEIR MARITAL STATUS BY A COURT OF COMPETENT JURISDICTION.

UPON FURTHER CONSIDERATION OF YOUR CLAIM FOR THE ARREARS OF PAY AND ALLOWANCES IT HAS BEEN CONCLUDED THAT EVEN IF THE DECEDENT'S MARRIAGE TO LUCIA WAS ILLEGAL, AND PAYMENT OF QUARTERS ALLOWANCE ON HER ACCOUNT WAS UNAUTHORIZED, WE WOULD NOT BE REQUIRED TO OBJECT TO THE CREDIT OF SUCH ALLOWANCE. SUCH CONCLUSION IS BASED UPON THE FACT THAT THE DECEDENT AND LUCIA HAD THREE MINOR CHILDREN, THAT CREDIT OF THE ALLOWANCE WAS AUTHORIZED ON ACCOUNT OF SUCH CHILDREN, AND THAT SUCH CREDIT WOULD BE THE SAME WHETHER THE DECEDENT HAD FOUR DEPENDENTS (WIFE AND THREE MINOR CHILDREN) OR THREE DEPENDENTS (THREE MINOR CHILDREN). CF. 26 COMP. GEN. 645 AND 34 ID. 378. ACCORDINGLY, SETTLEMENT FOR THE ARREARS OF PAY AND ALLOWANCES WILL ISSUE TO YOU IN DUE COURSE.

RESPECTING THE PRESENT REQUEST OF LUCIA FOR THE SIX MONTHS' DEATH GRATUITY, THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY, B-139243, TO HER ADVISING THAT, ON THE BASIS OF THE PRESENT RECORD, HER CLAIM AS WIDOW MAY NOT RECEIVE FAVORABLE CONSIDERATION EVEN THOUGH THE VETERANS ADMINISTRATION MAY HAVE RECOGNIZED HER AS WIDOW FOR THE PURPOSES OF THE PAYMENT OF BENEFITS UNDER LAWS ADMINISTERED BY THAT ADMINISTRATION, AND THAT ACTION ON HER CLAIM MUST AWAIT A LEGAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION AS TO WHETHER SHE IS THE LAWFUL WIDOW OF THE DECEDENT.

IN VIEW OF THE STATEMENT IN YOUR LETTER OF SEPTEMBER 13, 1955, AS TO THE POSSIBILITY OF FILING AN INTERPLEADER ACTION FOR THE PURPOSE OF OBTAINING A LEGAL DETERMINATION AS TO WHICH OF THE WOMEN HERE INVOLVED IS THE LEGAL WIDOW OF THE DECEDENT, AND IN ORDER THAT WE MAY AUTHORIZE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY - AN AMOUNT IN EXCESS OF $1,000 - TO SUCH LAWFUL WIDOW, IT IS REQUESTED, IN CASE SUCH A JUDICIAL DETERMINATION IS OBTAINED, THAT WE BE FURNISHED WITH A CERTIFIED TRUE COPY OF SUCH DECREE.