B-25657, FEBRUARY 13, 1943, 22 COMP. GEN. 797

B-25657: Feb 13, 1943

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AN UNMARRIED CHILD OVER 21 YEARS OF AGE OF A DECEASED ARMY OFFICER OR ENLISTED MAN IS NOT ENTITLED TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PAY AUTHORIZED BY THE ACT OF DECEMBER 17. SUCH A CHILD IS REQUIRED TO ESTABLISH THE RIGHT TO PAYMENT OF THE GRATUITY BY A PROPER SHOWING OF ACTUAL DEPENDENCY. 22 COMP. HAVE AN INSURABLE INTEREST IN THE LIFE OF THE DECEASED SUCH AS WOULD PERMIT RECOGNITION AS A "DEPENDENT RELATIVE" WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY PAY STATUTE OF DECEMBER 17. OR OTHER CONDITIONS OR CIRCUMSTANCES RESULTING IN THE REASONABLE EXPECTATION OF SOME BENEFIT OR ADVANTAGE FROM THE CONTINUANCE OF THE LIFE OF THE DECEDENT ORDINARILY WILL MEET THE PURPOSE AND REQUIREMENT OF THE STATUTE. 22 COMP.

B-25657, FEBRUARY 13, 1943, 22 COMP. GEN. 797

SIX MONTHS' DEATH GRATUITY PAY - CHILDREN; DEPENDENT RELATIVES AS HERETOFORE CONSTRUED (SEE 18 COMP. GEN. 567), THE ACT OF MARCH 2, 1923, AMENDING THE SIX MONTHS' DEATH GRATUITY PAY STATUTE OF DECEMBER 17, 1919, PROHIBITS PAYMENT OF THE GRATUITY TO ANY MARRIED CHILD OF A DECEASED ARMY OFFICER OR ENLISTED MAN. 22 COMP. GEN. 85, AMPLIFIED. AN UNMARRIED CHILD OVER 21 YEARS OF AGE OF A DECEASED ARMY OFFICER OR ENLISTED MAN IS NOT ENTITLED TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PAY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED BY THE ACT OF MARCH 2, 1923, UNLESS ACTUALLY A DEPENDENT OF THE OFFICER OR ENLISTED MAN, AND, THEREFORE, SUCH A CHILD IS REQUIRED TO ESTABLISH THE RIGHT TO PAYMENT OF THE GRATUITY BY A PROPER SHOWING OF ACTUAL DEPENDENCY. 22 COMP. GEN. 85, AMPLIFIED. WHILE THERE MAY NOT BE PRESCRIBED A DEFINITE RULE APPLICABLE ALIKE TO ALL CASES, IN DETERMINING WHETHER RELATIVES DESIGNATED AS BENEFICIARIES OF DECEASED ARMY PERSONNEL, OTHER THAN FATHER, MOTHER, BROTHER OR SISTER, HAVE AN INSURABLE INTEREST IN THE LIFE OF THE DECEASED SUCH AS WOULD PERMIT RECOGNITION AS A "DEPENDENT RELATIVE" WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY PAY STATUTE OF DECEMBER 17, 1919, AS AMENDED, EVIDENCE TENDING TO SHOW PRIOR CONDITIONS OF LOCO PARENTIS BETWEEN SUCH RELATIVES AND THE DECEDENTS, CONTRIBUTIONS FROM ONE TO THE OTHER FOR SUPPORT, EDUCATION, ETC., A DEBTOR-CREDITOR RELATIONSHIP, OR OTHER CONDITIONS OR CIRCUMSTANCES RESULTING IN THE REASONABLE EXPECTATION OF SOME BENEFIT OR ADVANTAGE FROM THE CONTINUANCE OF THE LIFE OF THE DECEDENT ORDINARILY WILL MEET THE PURPOSE AND REQUIREMENT OF THE STATUTE. 22 COMP. GEN. 85, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, FEBRUARY 13, 1943:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 25, 1943, AS FOLLOWS:

IN A DECISION (22 COMP. GEN. 85) DATED JULY 30, 1942, YOUR OFFICE HELD THAT, HEREAFTER, NO AFFIRMATIVE SHOWING OF DEPENDENCY WILL BE REQUIRED IN MAKING PAYMENTS OF SIX MONTHS' DEATH GRATUITY PAY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, TO FATHERS, MOTHERS, BROTHERS, OR SISTERS DESIGNATED AS BENEFICIARIES OF DECEASED ARMY PERSONNEL, WHO HAD AN INSURABLE INTEREST IN THE LIFE OF THE DECEASED BY REASON OF RELATIONSHIP ALONE, BUT, AS TO MORE DISTANT RELATIVES, MORE EVIDENCE OF INSURABLE INTEREST WILL BE REQUIRED THAN HERETOFORE. IT IS ALSO STATED IN THE MENTIONED DECISION THAT "THE PAYMENT PROVIDED FOR IN THE STATUTE HERE INVOLVED IS TO BE MADE TO THE WIDOW OR CHILD WITHOUT DESIGNATION AND WITHOUT ANY SHOWING OTHER THAN RELATIONSHIP.' IF THE WORD "CHILD" WAS INTENDED TO EMBRACE ONLY CHILDREN WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE, IN ACCORDANCE WITH THE ACT OF MARCH 2, 1923 (42 STAT. 1385), IT APPEARS THAT CERTAIN UNMARRIED CHILDREN OVER 21 YEARS OF AGE ARE NOW IN A LESS FAVORABLE POSITION THAN MOTHERS, FATHERS, SISTERS, AND BROTHERS, WHILE, UNDER A DECISION OF YOUR PREDECESSOR IN OFFICE, REPORTED IN 18 COMPTROLLER GENERAL 567, MARRIED CHILDREN HAVE NO RIGHTS AT ALL. VERIFICATION OF THIS UNDERSTANDING OF THE MEANING OF THE WORD "CHILD," AND OF THE MENTIONED APPARENT RESULT IS REQUESTED. AS THE INSURABLE INTEREST FACTOR WAS NOT CONSIDERED IN THE DECISION REPORTED IN 18 COMPTROLLER GENERAL 567, IT IS LIKEWISE REQUESTED THAT YOU GIVE RECONSIDERATION TO THAT DECISION.

SINCE THE FIRST-MENTIONED DECISION WAS PUBLISHED, MUCH DIFFICULTY HAS BEEN EXPERIENCED BY THE WAR DEPARTMENT IN THE FORMULATION OF APPROPRIATE INFORMATION AND INSTRUCTIONS TO MEMBERS OF THE MILITARY ESTABLISHMENT AS TO WHEN UNMARRIED CHILDREN OVER 21 YEARS OF AGE MAY BE ENTITLED TO SUCH DEATH GRATUITY AND UNDER WHAT CONDITIONS MORE DISTANT RELATIVES THAN FATHERS, MOTHERS, SISTERS, AND BROTHERS MAY BE NAMED AS BENEFICIARIES AND ENTITLED TO RECEIVE THE BENEFITS PROVIDED IN THE PERTINENT ACT. DIFFERENT JURISDICTIONS HAVE VARIOUSLY DEFINED "INSURABLE INTEREST," THE WAR DEPARTMENT IS HESITANT ABOUT ATTEMPTING TO FORMULATE RULES WITH RESPECT THERETO, AND YET IT IS MANIFESTLY NECESSARY THAT PROPER INSTRUCTIONS ON THE SUBJECT BE PUBLISHED FOR THE GUIDANCE OF MILITARY PERSONNEL. IT IS THEREFORE REQUESTED THAT THE DECISION FIRST ABOVE MENTIONED BE AMPLIFIED SO AS TO INDICATE WHAT YOU WILL CONSIDER AS A SUFFICIENT SHOWING OF INSURABLE INTEREST IN THE FOLLOWING CASES:

A. UNMARRIED CHILD OR CHILDREN OVER 21 YEARS OF AGE.

B. MARRIED CHILD OR CHILDREN.

C. RELATIVES MORE DISTANT THAN FATHERS, MOTHERS, SISTERS, AND BROTHERS, SUCH AS

AUNTS AND UNCLES,

COUSINS,

GRANDPARENTS, AND

STEPPARENTS.

THE STATEMENT MADE IN 22 COMP. GEN. 85, 88, THAT "THE PAYMENT PROVIDED FOR IN THE STATUTE HERE INVOLVED IS TO BE MADE TO THE WIDOW OR CHILD WITHOUT DESIGNATION AND WITHOUT ANY SHOWING OTHER THAN THE RELATIONSHIP" WAS INTENDED, OF COURSE, TO INCLUDE ONLY UNMARRIED CHILDREN UNDER 21 YEARS OF AGE. THE ACT OF MARCH 2, 1923, 42 STAT. 1385, AS CONSTRUED IN DECISION OF DECEMBER 23, 1938, 18 COMP. GEN. 567, AUTHORIZES PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO AN UNMARRIED CHILD (OR CHILDREN) OVER 21 YEARS OF AGE IF ACTUALLY A DEPENDENT OF THE OFFICER OR ENLISTED MAN, BUT PROHIBITS PAYMENT OF THE GRATUITY TO ANY MARRIED CHILD. IN VIEW OF THE PROVISIONS OF THIS LATTER STATUTE AN UNMARRIED CHILD (OR CHILDREN) OVER 21 YEARS OF AGE WOULD BE REQUIRED TO ESTABLISH THEIR RIGHT TO PAYMENT OF THE GRATUITY BY A PROPER SHOWING OF ACTUAL DEPENDENCY ON THE DECEASED. THE DECISION OF JULY 30, 1942, 22 COMP. GEN. 85, WAS IN NO WAY INTENDED AS SUPERSEDING OR MODIFYING THE DECISION IN 18 COMP. GEN. 567, AND, AS PREVIOUSLY STATED, MARRIED CHILDREN ARE PRECLUDED IN ALL CASES FROM THE BENEFITS OF THE ACT OF DECEMBER 17, 1919, 41 STAT. 367.

IN THE DECISION OF JULY 30, 1942, THERE WAS RECOGNIZED THE APPARENTLY INCONGRUOUS SITUATION WITH RESPECT TO A MARRIED CHILD AND AN UNMARRIED CHILD OVER 21 YEARS OF AGE OF A DECEDENT--- INASMUCH AS SUCH CHILDREN ARE RECOGNIZED AS HAVING AN INSURABLE INTEREST IN THEIR PARENTS--- BUT THE SPECIFIC PROHIBITION AND LIMITATION CONTAINED IN THE ACT OF MARCH 2, 1923, 42 STAT. 1385, MUST BE GIVEN THEIR PROPER EFFECT INSTEAD OF BEING OVERLOOKED OR IGNORED. THIS OFFICE, OF COURSE, MAY NOT RECOGNIZE AS A RIGHT OR BENEFIT THAT WHICH THE STATUTE EXPRESSLY PROHIBITS.

AS STATED BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF WARNOCK V. DAVIS, 104 U.S. 775, CITED AND PARTIALLY QUOTED AT PAGE 89 OF THE DECISION OF JULY 30, 1942,"IT IS NOT EASY TO DEFINE WITH PRECISION WHAT WILL IN ALL CASES CONSTITUTE AN INSURABLE INTEREST.' CONSEQUENTLY, THE QUESTION OF WHAT CONSTITUTES AN INSURABLE INTEREST OF A PERSON HAVING RELATIONSHIP OF THE DEGREES MENTIONED IN THE LAST PARAGRAPH OF YOUR LETTER UNDER "C," SO AS TO PERMIT OF SUCH PERSON BEING RECOGNIZED AS A "DEPENDENT RELATIVE" WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF DECEMBER 17, 1919, IS DEPENDENT UPON THE FACTS IN EACH INDIVIDUAL CASE, AND THIS OFFICE MAY NOT UNDERTAKE TO PRESCRIBE A DEFINITE RULE THAT WOULD BE APPLICABLE ALIKE TO ALL SUCH CASES. HOWEVER, AS AN AID IN THE CONSIDERATION OF SUCH CASES IT MAY BE STATED THAT EVIDENCE TENDING TO SHOW PRIOR CONDITIONS OF LOCO PARENTIS BETWEEN SUCH RELATIVES AND THE DECEDENTS; CONTRIBUTIONS FROM ONE TO THE OTHER FOR SUPPORT, EDUCATION, ETC.; A DEBTOR-CREDITOR RELATIONSHIP; OR OTHER CONDITIONS AND CIRCUMSTANCES RESULTING IN THE REASONABLE EXPECTATION OF SOME BENEFIT OR ADVANTAGE FROM THE CONTINUANCE OF THE LIFE OF THE DECEDENT ORDINARILY WILL MEET THE PURPOSE AND REQUIREMENTS OF THE LAW. AS SUCH DESIGNATED BENEFICIARIES PRESUMABLY WILL REPRESENT ONLY A SMALL PERCENTAGE OF ALL CLAIMS BASED UPON THE STATUTES UNDER CONSIDERATION AND AS THE DESIGNATION MADE BY THE OFFICER OR ENLISTED MAN IN MOST CASES OF A PERSON OF THESE DEGREES OF RELATIONSHIP PROBABLY WILL BE PREMISED ON SOME SUCH CONDITIONS, IT IS BELIEVED THAT WHAT HAS BEEN SAID HEREIN WILL SERVE YOU IN CONNECTION WITH THE PROPOSED INSTRUCTIONS ON THE SUBJECT.

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