B-157479, JUL. 21, 1966

B-157479: Jul 21, 1966

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FREDDIE MCCARTHY: FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 4. CHILDREN BORN OUT OF WEDLOCK MAY INHERIT FROM THEIR FATHER ONLY IF THERE WAS AN ACKNOWLEDGEMENT BY HIM OF HIS PATERNITY WE ARE WITHOUT LEGAL AUTHORITY TO ALLOW YOUR CLAIM. ALBERT MCCARTHY AND THE MOTHER "CONCHITA FERRES" WERE MARRIED AND THAT EVANGELINE MCCARTHY IS THEIR LEGITIMATE ISSUE. MATUTINA URGES THAT THIS BIRTH CERTIFICATE SHOULD BE ACCEPTED AS ESTABLISHING THAT YOU AND YOUR SISTERS ARE THE LEGITIMATE CHILDREN OF YOUR PARENTS AND THAT ALL STATEMENTS IN THE RECORD THAT YOUR PARENTS WERE NOT MARRIED ARE NOT TRUE. HE CONTENDS YOU AND YOUR SISTERS ARE THE LAWFUL HEIRS OF ALBERT MCCARTHY AND ARE ENTITLED TO THE PAY AND ALLOWANCES DUE AND TO PAYMENT OF 6 MONTHS' DEATH GRATUITY.

B-157479, JUL. 21, 1966

TO MR. FREDDIE MCCARTHY:

FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 4, 1966, WITH ENCLOSURE, WRITTEN IN YOUR BEHALF BY MR. RODRIGO C. MATUTINA, ATTORNEY AT LAW, SURIGAO, SURIGAO DEL NORTE, REPUBLIC OF THE PHILIPPINES, REQUESTING RECONSIDERATION OF YOUR CLAIM AND THE CLAIMS OF YOUR SISTERS, FOR THE PAY AND ALLOWANCES AND 6 MONTHS' DEATH GRATUITY BELIEVED TO BE DUE INCIDENT TO THE DEATH OF YOUR ASSERTED FATHER, ALBERT MCCARTHY, WHO SERVED AS AN OFFICER IN THE UNITED STATES ARMY IN THE PHILIPPINES DURING WORLD WAR II.

IN OUR DECISION TO YOU DATED MAY 11, 1966, B-157479, WE EXPLAINED THAT SINCE THE RECORD SHOWED THAT YOUR MOTHER AND THE DECEASED OFFICER DID NOT ENTER INTO A CEREMONIAL MARRIAGE AND UNDER THE LAWS OF THE REPUBLIC OF THE PHILIPPINES, CHILDREN BORN OUT OF WEDLOCK MAY INHERIT FROM THEIR FATHER ONLY IF THERE WAS AN ACKNOWLEDGEMENT BY HIM OF HIS PATERNITY WE ARE WITHOUT LEGAL AUTHORITY TO ALLOW YOUR CLAIM, IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT ALBERT MCCARTHY ACKNOWLEDGED YOU AND YOUR SISTERS AS HIS CHILDREN, OR A COURT DETERMINATION OF YOUR STATUS.

WITH HIS PRESENT LETTER MR. MATUTINA ENCLOSED A CERTIFICATE FILED FEBRUARY 5, 1937, OF THE BIRTH OF EVANGELINE MCCARTHY ON JANUARY 9, 1932. THE CERTIFICATE SHOWS THAT THE FATHER, ALBERT MCCARTHY AND THE MOTHER "CONCHITA FERRES" WERE MARRIED AND THAT EVANGELINE MCCARTHY IS THEIR LEGITIMATE ISSUE. MR. MATUTINA URGES THAT THIS BIRTH CERTIFICATE SHOULD BE ACCEPTED AS ESTABLISHING THAT YOU AND YOUR SISTERS ARE THE LEGITIMATE CHILDREN OF YOUR PARENTS AND THAT ALL STATEMENTS IN THE RECORD THAT YOUR PARENTS WERE NOT MARRIED ARE NOT TRUE. ON THAT BASIS, HE CONTENDS YOU AND YOUR SISTERS ARE THE LAWFUL HEIRS OF ALBERT MCCARTHY AND ARE ENTITLED TO THE PAY AND ALLOWANCES DUE AND TO PAYMENT OF 6 MONTHS' DEATH GRATUITY.

THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH GOVERNS THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE THE ESTATES OF DECEASED ARMY PERSONNEL WHO DIED PRIOR TO JANUARY 1, 1956, PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE, PAYMENT SHOULD BE MADE TO THE WIDOW OR WIDOWER, AND IF DECEDENT LEFT NO WIDOWOR WIDOWER, OR THE WIDOW OR WIDOWER BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES. UNDER THE PROVISIONS OF THE STATUTE, A WIDOW OR WIDOWER TAKES PRECEDENCE OVER CHILDREN IN THE SETTLEMENT OF A DECEDENT'S ACCOUNTS, AND WHERE A WIDOW SURVIVES NO PAYMENT MAY BE MADE TO ANY OTHER DISTRIBUTEE WHILE THE WIDOW IS ALIVE.

HENCE, IF THE BIRTH CERTIFICATE OF EVANGELINE MCCARTHY MAY BE ACCEPTED AS ESTABLISHING THAT ALBERT MCCARTHY AND CONCHITA PEREZ WERE LEGALLY MARRIED, HE IS SURVIVED BY A WIDOW AND NO CONSIDERATION MAY BE GIVEN TO CLAIMS PRESENTED BY HIS CHILDREN. IN THIS REGARD ANY CLAIM WHICH CONCHITA PEREZ MAY NOW PRESENT AS WIDOW COULD NOT RECEIVE FAVORABLE CONSIDERATION IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237. THAT ACT PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. ALSO, SHOULD CONCHITA PEREZ NOW DIE, IT IS AT LEAST QUESTIONABLE WHETHER, IN VIEW OF THE PROVISIONS OF THE BARRING ACT WE COULD GIVE FURTHER CONSIDERATION TO YOUR CLAIMS, SINCE AT THE TIME OF THE FILING OF YOUR CLAIMS THERE WAS A WIDOW SURVIVING AND YOUR CLAIMS AS CHILDREN WOULD HAVE BEEN WITHOUT LEGAL EFFECT.

AS TO THE PROBATIVE VALUE TO BE GIVEN THE BIRTH CERTIFICATE OF EVANGELINE MCCARTHY SUBMITTED BY MR. MATUTINA, AN EXAMINATION OF THAT CERTIFICATE SHOWS THAT IT WAS ISSUED OVER FIVE YEARS AFTER THE BIRTH OF THE CHILD AND CERTAIN OF THE DATES ON THE CERTIFICATE HAVE BEEN ALTERED. ALSO, THE NAME OF THE MOTHER IS SHOWN ON THE CERTIFICATE AS CONCHITA FERRES, NOT PEREZ, AND NEITHER THE FATHER OR MOTHER APPEARS TO HAVE BEEN INVOLVED WITH ITS ISSUANCE. IN SUCH CIRCUMSTANCES AND IN VIEW OF THE MANY AFFIDAVITS IN THE FILE DECLARING THAT YOUR MOTHER AND FATHER DID NOT ENTER INTO A CEREMONIAL MARRIAGE, INCLUDING A JOINT AFFIDAVIT EXECUTED BY YOU AND YOUR SISTERS AND ONE EXECUTED BY CONCHITA PEREZ AGAINST HER INTEREST IN WHICH SHE AVERS THAT SHE AND ALBERT MCCARTHY WERE NEVER LEGALLY MARRIED AND THE COMPLETE ABSENCE OF ANY OTHER EVIDENCE THAT THEY EVER MARRIED, WE DO NOT BELIEVE WE WOULD BE JUSTIFIED IN ACCEPTING THE BIRTH CERTIFICATE AS PROOF THAT YOUR PARENTS WERE LEGALLY MARRIED.

ACCORDINGLY, THE AMOUNTS DUE IN THE CASE MAY NOT BE ALLOWED TO YOU AND YOUR SISTERS ON THE BASIS OF MR. MATUTINA'S LETTER OF JUNE 4, 1966. HOWEVER, FURTHER CONSIDERATION WILL BE GIVEN TO YOUR CLAIMS IF YOU ARE ABLE TO SUBMIT ANY EVIDENCE SUCH AS CORRESPONDENCE FROM YOUR FATHER TO YOUR GRANDFATHER OR TO OTHERS IN WHICH HE REFERS TO YOU AND YOUR SISTERS AS HIS CHILDREN, OR OTHERWISE SHOWING HIS ACKNOWLEDGMENT OF YOU AS HIS CHILDREN.

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