B-38639, JANUARY 20, 1944, 23 COMP. GEN. 516

B-38639: Jan 20, 1944

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ILLEGITIMATE CHILDREN AN ENLISTED MAN OF THE NAVAL RESERVE WHO ENTERED INTO A VERBAL AGREEMENT WITH A WOMAN TO BECOME HUSBAND AND WIFE AND MAINTAINED AN ALLEGED COMMON- LAW RELATIONSHIP WITH HER IN A STATE WHERE COMMON-LAW MARRIAGES ARE NOT RECOGNIZED MAY NOT BE REGARDED AS HAVING A "LAWFUL WIFE" WITHIN THE MEANING OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942. AN ENLISTED MAN OF THE NAVAL RESERVE IS NOT ENTITLED TO PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF HIS ILLEGITIMATE CHILDREN UNLESS SUCH CHILDREN HAVE BEEN LEGITIMATIZED. WHERE IT IS ESTABLISHED THAT A NAVY ENLISTED MAN'S MINOR CHILDREN. WHO WERE BORN OF AN ALLEGED COMMON-LAW MARRIAGE IN A STATE. HAVE BEEN LEGITIMATIZED.

B-38639, JANUARY 20, 1944, 23 COMP. GEN. 516

QUARTERS ALLOWANCE - DEPENDENTS - COMMON-LAW WIFE; ILLEGITIMATE CHILDREN AN ENLISTED MAN OF THE NAVAL RESERVE WHO ENTERED INTO A VERBAL AGREEMENT WITH A WOMAN TO BECOME HUSBAND AND WIFE AND MAINTAINED AN ALLEGED COMMON- LAW RELATIONSHIP WITH HER IN A STATE WHERE COMMON-LAW MARRIAGES ARE NOT RECOGNIZED MAY NOT BE REGARDED AS HAVING A "LAWFUL WIFE" WITHIN THE MEANING OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO ENTITLE HIM TO PAYMENT OF MONETARY ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF A LAWFUL WIFE. THE TERM "CHILDREN" AS USED IN SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 MAY NOT BE REGARDED AS INCLUDING ILLEGITIMATE CHILDREN, AND, THEREFORE, AN ENLISTED MAN OF THE NAVAL RESERVE IS NOT ENTITLED TO PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF HIS ILLEGITIMATE CHILDREN UNLESS SUCH CHILDREN HAVE BEEN LEGITIMATIZED. WHERE IT IS ESTABLISHED THAT A NAVY ENLISTED MAN'S MINOR CHILDREN, WHO WERE BORN OF AN ALLEGED COMMON-LAW MARRIAGE IN A STATE--- CALIFORNIA--- WHICH DOES NOT RECOGNIZE SUCH MARRIAGES, HAVE BEEN LEGITIMATIZED, THE ENLISTED MAN MAY BE CREDITED WITH THE MONETARY ALLOWANCE IN LIEU OF QUARTERS AUTHORIZED ON ACCOUNT OF DEPENDENTS (LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE).

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 20, 1944:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 27, 1943, AS FOLLOWS:

THERE IS FORWARDED HEREWITH, THE CLAIM OF PAUL STEVENS SNIPES, CM1C, V-6, USNR, NAVAL CONSTRUCTION TRAINING CENTER, CAMP PEARY, WILLIAMSBURG, VIRGINIA, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENTS, FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS ON BEHALF OF HIS DEPENDENTS.

YOUR DECISION IS REQUESTED ON THE QUESTION PRESENTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IN PARAGRAPH 4 OF THE PRECEDING ENDORSEMENT, AS TO WHETHER SNIPES IS ENTITLED TO PAYMENT OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR HIS CHILDREN FROM JULY 7, 1943 ( JULY 24, 1943), UNDER THE CONDITIONS SET FORTH IN THE ENCLOSED CORRESPONDENCE.

SAID PARAGRAPH 4 OF THE INDORSEMENT OF NOVEMBER 15, 1943, OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IS AS FOLLOWS:

4. THE SPECIFIC CASE SUBMITTED BY THE BUREAU OF NAVAL PERSONNEL IN THE ATTACHED CORRESPONDENCE INVOLVES AN ENLISTED MAN WHO IS CLAIMING MAQ ON BEHALF OF PERSONS DENOMINATED AS "COMMON-LAW WIFE AND ILLEGITIMATE CHILDREN.' THE CHILDREN IN THIS CASE WERE BORN TO HIM AND A WOMAN WITH WHOM HE HAS MAINTAINED AN ALLEGED COMMON-LAW RELATIONSHIP IN CALIFORNIA SINCE 1934. THE TERM "WIFE" AS USED IN THE STATUTES AUTHORIZING TRANSPORTATION OF DEPENDENTS, COMMUTATION OF QUARTERS, HEAT AND LIGHT, INCREASED RENTAL AND SUBSISTENCE ALLOWANCES, AND MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS HAS BEEN CONSTRUED TO MEAN THE WOMAN WHO IS LAWFULLY MARRIED TO THE OFFICER OR MAN AND CONTINUES TO BE HIS WIFE, THE ESSENTIALS TO SUCH MARRIAGE BEING THAT BOTH WERE LEGALLY CAPABLE OF CONTRACTING MARRIAGE, MUTUAL CONSENT AND AGREEMENT, AND AN ACTUAL CONTRACTING IN THE FORM PRESCRIBED BY LAW, DEEMED BY THEM OBLIGATORY. COMMON-LAW MARRIAGES HAVE NOT BEEN RECOGNIZED IN CALIFORNIA SINCE 1897, (1895) AND UNDER EXISTING DECISIONS OF THE COMPTROLLER GENERAL, SNIPES IS NOT ENTITLED TO MAQ (W) BY REASON OF THE FACT THAT HE MAY HAVE MAINTAINED AN ALLEGED COMMON-LAW RELATIONSHIP WITH ELNA BELLE SNIPES IN THAT STATE SINCE 1934. IT IS RECOMMENDED THAT THE VOUCHERS TRANSMITTED WITH THE FIRST ENDORSEMENT BE FORWARDED TO THE COMPTROLLER GENERAL WITH THE REQUEST THAT DETERMINATION BE MADE AS TO WHETHER SNIPES IS ENTITLED TO MAQ (LC) ON BEHALF OF HIS CHILDREN FROM DATE OF REPORTING FOR ACTIVE DUTY.

THE PAPERS ACCOMPANYING YOUR LETTER SHOW THAT ON JULY 30, 1943, PAUL STEVEN SNIPES, CM1C, V-6/S), USNR, MADE CLAIM FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS AS FOLLOWS (THE DATE FOLLOWING EACH NAME OF THE SEVERAL CHILDREN LISTED IN HIS CLAIM PRESUMABLY BEING THE DATE OF THE CHILD'S BIRTH):

1. IT IS REQUESTED THAT AUTHORITY BE GRANTED TO EFFECT CREDIT TO MY ACCOUNT, DUE TO MY DEPENDENT COMMON-LAW WIFE AND ILLEGITIMATE CHILDREN:

ELNA BELLE SNIPES, COMMON-LAW WIFE, 417 FULLER ST; REDWOOD CITY, CAL.

LILA LOUISE SNIPES, 8/14/35. SAME AS ABOVE.

PAUL KEITH SNIPES, 12/22/36. SAME AS ABOVE.

DAVID ALONZO SNIPES, 9/20/39. SAME AS ABOVE.

ELAINE AVONE SNIPES, 4/7/43. SAME AS ABOVE. FOR THE PERIOD FROM 7/24/43, DATE REPORTING FOR ACTIVE DUTY THROUGHOUT CURRENT ENLISTMENT.

2. I HAVE CONTRIBUTED FOR SUPPORT OF MY DEPENDENT FAMILY IN THE MANNER OF $300.00 PER MONTH FROM 1934 TO DATE OF ENTRY INTO SERVICE. I HAVE AN ALLOTMENT OF $100.00 IN FAVOR OF MY DEPENDENT FAMILY FIRST PAYMENT SEPTEMBER, 1943. AND, IN HIS CERTIFICATE OF SEPTEMBER 6, 1943, ALSO SUBMITTED WITH YOUR LETTER, THE CLAIMANT STATES:

I, PAUL STEVEN SNIPES, DO HEREBY CERTIFY THAT ON SEPTEMBER 2, 1934, AT GRIDLEY, CALIFORNIA, I ENTERED INTO VERBAL AGREEMENT WITH ELNA BELLE SNIPES TO BECOME HUSBAND AND WIFE, AND WE HAVE BEEN LIVING UNDER THAT AGREEMENT SINCE THAT TIME.

I FURTHER CERTIFY THAT I WAS 25 YEARS OF AGE AT THAT TIME AND ELNA BELLE SNIPES WAS 18 YEARS OLD.

SECTION 10 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363, 364, AUTHORIZES A MONEY ALLOWANCE FOR QUARTERS, IN PERTINENT PART, AS FOLLOWS:

EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE, IN THE ACTIVE MILITARY, NAVAL, OR COAST GUARD SERVICE OF THE UNITED STATES HAVING A DEPENDENT AS DEFINED IN SECTION 4 OF THIS ACT, SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONTHLY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND * * *. AND SECTION 4 OF SAID ACT, 56 STAT. 361, DEFINES THE TERM "DEPENDENT," AS USED IN THE ACT, AS FOLLOWS:

THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT:PROVIDED, THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

FROM HIS CERTIFICATE OF SEPTEMBER 6, 1943, QUOTED HEREINBEFORE, IT WILL BE NOTED THAT THE CLAIMANT STATES THAT HE "ENTERED INTO VERBAL AGREEMENT WITH ELNA BELLE SNIPES TO BECOME HUSBAND AND WIFE" ON SEPTEMBER 2, 1934, AT GRIDLEY, CALIFORNIA. WHETHER BY AND THROUGH THIS AGREEMENT THERE WAS CONSUMMATED A VALID COMMON LAW MARRIAGE NEED NOT HERE BE DETERMINED, SINCE THE LAWS OF THE STATE OF CALIFORNIA COMMON LAW MARRIAGES ARE VALID ONLY IF CONSUMMATED PRIOR TO 1895 ( CAL. CIV. CODE 55). HENCE, IT IS CLEAR THAT THE CLAIMANT HAS NOT A LAWFUL WIFE WITHIN THE MEANING OF SECTION 4 OF THE ACT OF JUNE 16, 1942, SUPRA, AND, THEREFORE, AS STATED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IN HIS ENDORSEMENT TO YOU OF NOVEMBER 15, 1943, HE "IS NOT ENTITLED TO MAQ (W) BY REASON OF THE FACT THAT HE MAY HAVE MAINTAINED AN ALLEGED COMMON LAW RELATIONSHIP WITH ELNA BELLE SNIPES.' HENCE, THERE REMAINS FOR CONSIDERATION WHETHER THE CLAIMANT IS ENTITLED TO THE ALLOWANCES AS FOR AN ENLISTED MAN HAVING "UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE;,

IN TRANSMITTING THIS CASE TO THE JUDGE ADVOCATE GENERAL, VIA THE BUREAU OF SUPPLIES AND ACCOUNTS, THE CHIEF OF NAVAL PERSONNEL STATED, IN PART, AS FOLLOWS:

1. THE SUBJECT CASE IS ONE OF MANY PENDING APPLICATIONS FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS, WHICH CANNOT BE ADJUDICATED UNTIL A FINAL DETERMINATION IS MADE WHETHER ILLEGITIMATE CHILDREN ARE ELIGIBLE AS DEPENDENTS UNDER SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 359).

2. IN CONSIDERING THE PROBLEM OF ELIGIBILITY OF ILLEGITIMATE CHILDREN THIS BUREAU HAS BEEN COGNIZANT OF THE PROVISIONS OF THE PAY AND ALLOWANCES ACT OF 1922 (42 STAT. 627), WHICH DEFINED THE TERM DEPENDENT TO INCLUDE A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER 21 YEARS OF AGE. A 1929 AMENDMENT (45 STAT. 1254) ADDED THE PROVISION THAT "THE WORD CHILDREN * * * SHALL BE HELD TO INCLUDE LEGITIMATE CHILDREN, STEP-CHILDREN, AND ADOPTED CHILDREN.' THESE PROVISIONS DETERMINED THE BASIC ELIGIBILITY FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS UNDER THE ACT OF 17 OCTOBER 1940 (54 STAT. 1205).

3. WHEN THE ACT OF 17 OCTOBER 1940 WAS SUPERSEDED BY THE PAY READJUSTMENT ACT OF 1942, THE PROVISIONS OF THE ACT OF 1922, AS AMENDED, WERE CHANGED TO READ," THE TERM CHILDREN SHALL BE HELD TO INCLUDE STEP-CHILDREN AND ADOPTED CHILDREN; " ALL MENTION OF "LEGITIMATE" CHILDREN WAS DROPPED. ACCORDING TO THE GENERAL RULES OF STATUTORY CONSTRUCTION, THE OMISSION OF THE RESTRICTIVE WORD "LEGITIMATE" IN SECTION 4 OF THE PAY READJUSTMENT ACT INDICATES A LEGISLATIVE INTENT TO DEFINE THE WORD "CHILDREN" INCLUSIVELY. A COMPLETE REVIEW OF THE LEGISLATIVE HISTORY OF THE PROVISION INDICATES NO CONTRARY INTENTION. MOREOVER, IN INTERPRETING LEGISLATION CONFERRING BENEFITS OF THIS CHARACTER, COURTS HAVE DISTINGUISHED THE OLD DECISIONS CONCERNING PROPERTY AND ESTATES AND HAVE DEFINED THE WORD CHILDREN TO INCLUDE ALL CHILDREN REGARDLESS OF THE STATUS OF LEGITIMACY.

4. IF THIS INTERPRETATION OF THE WORD "CHILDREN" IS NOT ACCEPTABLE AS A GENERAL PRINCIPLE, THERE IS A FURTHER IMPORT QUESTION PRESENTED BY THE SUBJECT CLAIMANT--- WHETHER A CHILD BECOMES LEGITIMATE BY ACKNOWLEDGMENT OF ITS FATHER AND THEREBY CREATES ELIGIBILITY FOR MONETARY ALLOWANCES IN LIEU OF QUARTERS. IN THE SUBJECT CASE THE ENLISTED MAN CLAIMS TO HAVE CONTRACTED A COMMON-LAW MARRIAGE IN CALIFORNIA, WHERE COMMON-LAW MARRIAGES ARE NOT RECOGNIZED. THE CHILDREN OF THIS MARRIAGE, THEREFORE, PRESUMABLY ARE ILLEGITIMATE, IF NOT LEGITIMATIZED. THE SUBJECT MAN, HOWEVER, RECOGNIZES THE CHILDREN AS HIS CHILDREN IN HIS APPLICATION FOR QUARTERS ALLOWANCE AND IN THAT RESPECT ACTS TOWARDS THEM AS A FATHER. THE CIVIL CODE OF CALIFORNIA, WHERE THE CHILDREN ARE EVIDENTLY DOMICILED, PROVIDES AS FOLLOWS:

THE FATHER OF AN ILLEGITIMATE CHILD, BY PUBLICLY ACKNOWLEDGING IT AS HIS OWN, RECEIVING IT AS SUCH, WITH THE CONSENT OF HIS WIFE, IF HE IS MARRIED, INTO HIS FAMILY, AND OTHERWISE, TREATING IT AS IF IT WERE A LEGITIMATE CHILD, THEREBY ADOPTS IT AS SUCH; AND SUCH CHILD IS THEREUPON DEEMED FOR ALL PURPOSES LEGITIMATE FROM THE TIME OF ITS BIRTH. AND, WITH REGARD TO THE QUESTION WHETHER THE WORDS "UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE," APPEARING IN SECTION 4 OF THE ACT OF JUNE 16, 1942, SUPRA, INCLUDE ILLEGITIMATE CHILDREN, THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS STATES IN HIS INDORSEMENT OF NOVEMBER 15, 1943, HEREINBEFORE REFERRED TO, AS FOLLOWS:

THE COMPTROLLER GENERAL IN REFERENCE (E) ( DECISION OF NOVEMBER 22, 1927, A-19783, 7 COMP. GEN. 343) IN CONSTRUING THE PROVISIONS OF LAW QUOTED, SUPRA, (SECTION 4 OF THE ACT OF JUNE 10, 1922) WITH RESPECT TO THE RIGHT OF AN OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCE OR TRANSPORTATION FOR AN ADOPTED CHILD WHOM HE CLAIMED AS HIS DEPENDENT, STATED THAT THE WORDS IN JUXTAPOSITION ARE "A LAWFUL WIFE AND UNMARRIED CHILDREN" WHICH APPARENTLY HAVE A RELATION TO THE OFFSPRING OF THE OFFICER WITH A LAWFUL WIFE. IN THIS DECISION IT WAS HELD THAT THE WORD CHILDREN" AS USED IN SECTIONS 4 AND 12 OF THE ACT OF JUNE 10, 1922 (42 STAT. 627 AND 631) WAS USED IN ITS ORDINARY OR POPULAR SENSE AND INCLUDED ONLY LEGITIMATE OFFSPRING BORN IN LAWFUL WEDLOCK. THE FIRST SENTENCE OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 IS IDENTICAL WITH THE FIRST SENTENCE OF SECTION 4 OF THE ACT OF JUNE 10, 1922.

2. THE PRIMARY PURPOSE OF THE AMENDMENT TO SECTION 4 OF THE ACT OF JUNE 10, 1922, CONTAINED IN THE ACT OF FEBRUARY 16, 1929, WAS TO OVERCOME RULINGS OF THE COMPTROLLER GENERAL TO THE EFFECT THAT OFFICERS WERE NOT ENTITLED TO RENTAL ALLOWANCE ON BEHALF OF AN ADOPTED CHILD, OR TRANSPORTATION FOR AN ADOPTED CHILD OR STEPCHILD. SUCH AMENDATORY LEGISLATION WAS OF A CLARIFYING NATURE AND THE OBJECT OF USING DEFINITIVE TERMINOLOGY WITH RESPECT TO CHILDREN WAS TO DISTINGUISH BETWEEN CHILDREN WHOSE FILIAL RELATION TO THE OFFICER AROSE BY ADOPTION, OR AFFINITY THROUGH MARRIAGE TO THE CHILD'S MOTHER, AND THOSE CHILDREN WHOSE RELATION TO THE OFFICER WAS THAT OF A CHILD BORN IN LAWFUL WEDLOCK.

AS ABOVE INDICATED THE TERM "CHILDREN" AS USED IN SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, HAD BEEN CONSTRUED PRIOR TO THE 1929 AMENDMENT AS NOT INCLUDING ILLEGITIMATE CHILDREN. THAT AMENDMENT, 45 STAT. 1254, IN DEFINING SAID TERM AS USED IN THE ORIGINAL ACT, ADDED THE PROVISION THAT "THE WORDS "CHILD" AND "CHILDREN" * * * SHALL BE HELD TO INCLUDE, LEGITIMATE CHILDREN, STEPCHILDREN, AND ADOPTED CHILDREN.' VIEW OF THE PRIMARY PURPOSE OF THE 1929 AMENDMENT AS STATED IN THE QUOTED PORTION OF THE INDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AND SINCE THE ADDITION OF THE WORD "LEGITIMATE" MADE BY THE 1929 AMENDMENT WAS MERELY DECLARATORY OF THE LAW AS IT THEN EXISTED IN RESPECT TO NATURAL CHILDREN, AND, THEREFORE, MERE SURPLUSAGE, THE ELIMINATION OF THE WORD "LEGITIMATE" IN THE ENACTMENT OF JUNE 16, 1942, MAY NOT, IN THE ABSENCE OF AFFIRMATIVE INDICATION OF INTENT OF THE CONGRESS OTHERWISE, BE CONSIDERED AS ENLARGING THE SCOPE OF THE WORDS "UNMARRIED CHILDREN" SO AS TO INCLUDE ILLEGITIMATE CHILDREN. ACCORDINGLY, THE CLAIMANT IS NOT ENTITLED TO THE ALLOWANCES CLAIMED ON ACCOUNT OF THE CHILDREN UNLESS THEY HAVE BEEN LEGITIMATIZED.

SECTION 230 OF THE CIVIL CODE OF CALIFORNIA--- THE STATUTE UNDER WHICH IT IS SUGGESTED THAT THE CHILDREN MAY HAVE BECOME LEGITIMATIZED-- IS AS FOLLOWS:

THE FATHER OF AN ILLEGITIMATE CHILD, BY PUBLICLY ACKNOWLEDGING IT AS HIS OWN, RECEIVING IT AS SUCH, WITH THE CONSENT OF HIS WIFE, IF HE IS MARRIED, INTO HIS FAMILY, AND OTHERWISE TREATING IT AS IF IT WERE A LEGITIMATE CHILD, THEREBY ADOPTS IT AS SUCH; AND SUCH CHILD IS THEREUPON DEEMED FOR ALL PURPOSES LEGITIMATE FROM THE TIME OF ITS BIRTH. THE FOREGOING PROVISIONS OF THIS CHAPTER DO NOT APPLY TO SUCH AN ADOPTION. THE LAST SENTENCE OF SAID STATUTE HAS REFERENCE TO ANTECEDENT PROVISIONS APPEARING IN THE SAME CHAPTER OF THE CODE RELATIVE TO THE ADOPTION OF CHILDREN AND HAS NO BEARING HERE. IN THE CASE OF BLYTHE V. AYRES ET. AL. ( CALIFORNIA), 31 PAC. 915, THE COURT STATED, AT PAGE 916, WITH REGARD TO THE MEANING OF THE WORD "ADOPTS" AS USED IN SAID STATUTE, AS FOLLOWS:

* * * THE VERB "ADOPTS," AS USED IN SECTION 230, IS USED IN THE SENSE OF "LEGITIMATES," AND THAT THE ACTS OF THE FATHER OF AN ILLEGITIMATE CHILD, IF FILLING THE MEASURE REQUIRED BY THAT STATUTE, WOULD RESULT, STRICTLY SPEAKING IN THE LEGITIMATION OF SUCH CHILD, RATHER THAN IN ITS ADOPTION. * * * TO THE SAME EFFECT IS IN RE MCNAMARA'S ESTATE ( CALIFORNIA), 183 PAC. 552, WHERE THE COURT STATED, AT PAGE 553:

* * * THE SECTION MENTIONED PROVIDES FOR LEGITIMATION RATHER THAN FOR ADOPTION IN THE ORDINARY SENSE * * *.

IN DECISION OF THIS OFFICE OF MARCH 13, 1942, B-22401, IN ANOTHER CASE INVOLVING THIS SECTION OF THE CIVIL CODE OF CALIFORNIA IT WAS STATED:

AN EXAMINATION OF DECISIONS OF THE CALIFORNIA COURTS INDICATES THAT THIS SECTION OF THE CODE HAS BEEN A RATHER FRUITFUL SOURCE OF LITIGATION, INVOLVING FOR THE MOST PART, NATURALLY, QUESTIONS OF THE DEVOLUTION AND DISTRIBUTION OF PROPERTY, BUT WHAT HAS BEEN HELD BY THE COURTS AS TO THE PROPER INTERPRETATION AND APPLICATION OF THE STATUTE IS PERTINENT TO THE QUESTION PRESENTED.

IT IS READILY APPARENT THAT THE REQUIREMENTS OF THE SECTION ARE CUMULATIVE, AND NOT ALTERNATIVE, AND THAT IN ORDER TO EFFECT AN "ADOPTION" SO AS TO CONFER LEGITIMACY UPON AN ILLEGITIMATE CHILD, THERE MUST BE COMPLIANCE WITH ALL THE SPECIFIED REQUIREMENTS, NOT JUST ONE OR SEVERAL--- SUBJECT TO THE SINGLE EXCEPTION THAT WHERE A MAN HAS NO WIFE, OF COURSE,"THE CONSENT OF THIS WIFE" TO HIS RECEIVING THE CHILD INTO HIS FAMILY IS NOT REQUIRED.

THE CALIFORNIA COURTS HAVE RECOGNIZED THE COMPREHENSIVE AND INCLUSIVE CHARACTER OF THE STATUTE. IN THE CASE OF GARNER V. JUDD ( CALIFORNIA) 64 PAC. 1076, IT WAS HELD THAT THE ACKNOWLEDGING OF AN ILLEGITIMATE CHILD BY A FATHER WITHOUT RECEIVING IT INTO HIS FAMILY WAS NOT SUFFICIENT FOR ITS ADOPTION OR LEGITIMATION. * * * AND SUBSEQUENTLY, IN GARNER V. JUDD, AS REPORTED IN 68 PAC. 1026, THE COURT STATED, WITH RESPECT TO THE REQUIREMENT OF THIS SECTION OF THE CODE REGARDING THE RECEIVING OF THE CHILD INTO HIS FAMILY, THAT---

* * * WHEN A MAN HAS A HOME, WHERE HE LIVES WITH A WOMAN WHOM HE HOLDS OUT TO THE WORLD AS HIS WIFE, HE HAS A FAMILY, WITHIN THE MEANING OF SECTION 230 OF THE CIVIL CODE, INTO WHICH HE MUST RECEIVE AN ILLEGITIMATE CHILD IN ORDER TO LEGITIMATE IT UNDER THAT SECTION. NOTE, ALSO, WHAT IS SAID IN THE CASE OF IN RE JONES' ESTATE ( CALIFORNIA), 135 PAC. 288, AT PAGE 290.

IN THE CASE OF IN RE MCNAMARA'S ESTATE, SUPRA, THE COURT STATED (QUOTING FROM PAGE 558 OF THE REPORT):

* * * THE REQUIREMENTS OF THE CODE (SECTION 230, CIV. CODE) FOR LEGITIMATION BY ADOPTION ARE TWO: FIRST, THAT THE FATHER MUST PUBLICLY ACKNOWLEDGE THE CHILD AS HIS; AND NEXT, THAT HE MUST TREAT IT AS IF IT WERE LEGITIMATE, AND IN PARTICULAR MUST RECEIVE IT INTO HIS OWN FAMILY AS HIS CHILD. THE EVIDENCE IS AMPLE ON BOTH POINTS. A MORE PUBLIC ACKNOWLEDGMENT THAN THE ACT OF MCNAMARA IN SIGNING THE CHILD'S BIRTH CERTIFICATE, DESCRIBING HIMSELF AS THE FATHER, IT WOULD BE DIFFICULT TO IMAGINE. IN ADDITION THE CHILD WAS WITH HIM AND ITS MOTHER MOST OF THE TIME AFTER ITS BIRTH, AND THE EVIDENCE SHOWS THAT THE RELATION OPENLY ASSUMED BY HIM WAS THAT OF FATHER. HIS STATEMENTS AND HIS ACTIONS WERE BOTH A PUBLIC ACKNOWLEDGMENT OF THE CHILD AS HIS, AND A CONSISTENT TREATMENT OF IT AS IF IT WERE LEGITIMATE. IT WAS ALSO RECEIVED INTO HIS FAMILY WITHIN THE MEANING OF THE CODE. IT HAS ALREADY BEEN DECIDED BY THIS COURT THAT THE WORD "FAMILY," AS USED BY THE CODE IN THIS CONNECTION, DOES NOT NECESSARILY MEAN RELATIONS, BUT MAY MEAN THE FAMILY IN WHICH OR AS PART OF WHICH THE FATHER ABIDES. ESTATE OF GIRD. 157 CAL. 542, 108 PAC. 499, 137 AM. ST. REP. 131; ESTATE OF JONES 166 CAL. 108, 135 PAC. 288. IN THIS SENSE THE ONLY FAMILY MCNAMARA HAD AFTER THE BIRTH OF THE CHILD WAS THE CHILD AND ITS MOTHER, WITH WHOM HE ABIDED, WITH OCCASIONAL ABSENCES, UNTIL HIS DEATH, WITH FULL ASSUMPTION OF THE RELATION OF FATHER, MOTHER AND CHILD. IT IS WORTHY OF NOTE IN THIS CONNECTION THAT WHILE MCNAMARA WAS SO LIVING WITH MRS. BETTENCORTE AND HER CHILD, HIS SISTER, ONE OF THE APPELLANTS, VISITED AND STAYED WITH THEM FOR SOME DAYS. THE RELATION BETWEEN MCNAMARA AND MRS. BETTENCORT WAS, TO BE SURE, UNLAWFUL, BUT THIS DOES NOT NEGATIVE THE PLAIN FACT THAT THE FAMILY RELATION EXISTED. * * *

FROM THE FOREGOING, AND FROM THE EVIDENCE SUBMITTED BY THE CLAIMANT AS QUOTED HEREINBEFORE, IT APPEARS THAT HE HAS MET THE REQUIREMENTS OF SECTION 230 OF THE CIVIL CODE OF CALIFORNIA, THUS LEGITIMATING HIS MINOR CHILDREN. ACCORDINGLY, IF OTHERWISE ENTITLED THERETO, HE MAY BE CREDITED WITH THE MONETARY ALLOWANCE IN LIEU OF QUARTERS AS FOR AN ENLISTED MAN WITH DEPENDENTS (LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE). THE ENLISTED MAN'S CLAIM DATED JULY 30, 1943, AND HIS CERTIFICATE OF SEPTEMBER 6, 1943, ARE RETURNED HEREWITH.