B-1130, MARCH 17, 1939, 18 COMP. GEN. 719

B-1130, MARCH 17, 1939, 18 COMP. GEN. 719

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - STEPMOTHER PREFERENCE STATUS SECTION 607 (C) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, 43 STAT. 130, HAVING PROVIDED, FOR THE PURPOSE OF THAT ACT, THAT THE TERM "MOTHER" SHOULD INCLUDE STEPMOTHER, THE STATUS OF A STEPMOTHER AS THAT OF A MOTHER IS CLEARLY ESTABLISHED BY THE BARE RELATIONSHIP AT THE DATE OF THE VETERAN'S DEATH, AND THERE IS NO PROPER BASIS FOR REQUIRING THAT A STEPMOTHER MUST, IN ADDITION TO ESTABLISHING HER STATUS AS STEPMOTHER, SHOW THAT SHE STOOD IN LOCO PARENTIS TO THE VETERAN, OR THAT THERE EXISTED A "FRIENDLY FAMILY RELATIONSHIP" BETWEEN THE STEPMOTHER AND THE VETERAN.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 17, 1939:

YOUR LETTER OF JANUARY 31, 1939, IS AS FOLLOWS:

A PROPOSED AWARD OF THE ADJUSTED SERVICE CREDIT IN THE SUM OF $203.75 UNDER SECTION 201, AND A LUMP-SUM PAYMENT OF $60.00 UNDER SECTION 608 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, IN FAVOR OF ISIAH WALTON, THE VETERAN'S NATURAL FATHER, AS THE PREFERRED DEPENDENT UNDER SECTION 601 OF THE SAME ACT, IN THE CASE OF JESSIE WALTON, XC 24, 353, A-4,556,999, WAS RETURNED WITH THE FOLLOWING LETTER DATED NOVEMBER 18, 1938, FROM THE CHIEF, VETERANS' SECTION OF THE GENERAL ACCOUNTING OFFICE:

"THE ABOVE-CITED CASE, INVOLVING THE PROPOSED PAYMENT OF THE VETERAN'S ADJUSTED SERVICE CREDIT IN THE AMOUNT OF $203.75, AND THE $60 LUMP SUM TO HIS FATHER AS THE PREFERRED DEPENDENT, IS RETURNED HEREWITH FOR THE REASON THAT UNDER THE PRINCIPLE APPLIED IN THE CASES OF LOUIS SILAS, XC-693,756, AND HOWARD E. SHUMWAY, XC-47,250, THE VETERAN'S STEPMOTHER, ANNA BRYANT WALTON, IS TO BE REGARDED AS THE PREFERRED DEPENDENT.'

IN AN OPINION RENDERED BY THE FORMER SOLICITOR OF THE VETERANS' ADMINISTRATION UNDER DATE OF DECEMBER 7, 1933, IN THE CASE OF JAMES D. LEFORGE, XC-335,975 (11 SOL. 430), RELATIVE TO AUTOMATIC INSURANCE BENEFITS WHICH RECEIVED MY APPROVAL, IT WAS HELD, IN EFFECT, THAT THE TERM "STEPMOTHER" CONTEMPLATED NOT MERELY THE BARE LEGAL RELATIONSHIP OF STEPMOTHER BUT A RELATIONSHIP OF IN LOCO PARENTIS AS WELL. THE FOLLOWING IS QUOTED FROM THAT OPINION:

"* * * ON THE QUESTION AS TO THE RIGHTS OF STEPMOTHERS TO RECEIVE BENEFITS FROM THE BUREAU OF WAR RISK INSURANCE BY REASON OF THAT RELATIONSHIP, ATTENTION IS INVITED TO AN OPINION DATED MARCH 8, 1919, FROM ERNEST H. DECKER, ASSOCIATE COUNSEL OF THE BUREAU OF WAR RISK INSURANCE, TO W. R. VANCE, THEN GENERAL COUNSEL OF THE BUREAU OF WAR RISK INSURANCE. IN THE COURSE OF THIS QUESTION MR. DECKER STATED:

" "IT HARDLY SEEMS PROBABLE THAT CONGRESS INCLUDED STEPPARENTS AND STEPCHILDREN AS PERSONS WITHIN THE BENEFITS OF THE ACT BECAUSE OF THE BARE LEGAL RELATIONSHIP BY AFFINITY. SUCH BARE LEGAL RELATIONSHIP, UNDER THE GENERAL LAW, CARRIES WITH IT NONE OF THE ORDINARY RECIPROCAL OBLIGATIONS OF PARENT AND CHILD. IT IS ONLY WHEN THE STEPPARENT HAS ASSUMED TO ACT IN LOCO PARENTIS THAT THERE RISE MUTUAL OBLIGATIONS OF SERVICE AND SUPPORT. * * * IT SEEMS VERY REASONABLE, THEREFORE, TO SUPPOSE THAT THE INCLUSION OF STEPPARENTS AND STEPCHILDREN BY CONGRESS WAS BASED UPON THE CUSTOMARY FAMILY RELATIONSHIP WHICH EXISTS IN THE GREAT MAJORITY OF CASES WHERE THE LEGAL RELATIONSHIP IS ESTABLISHED, AND THAT CONSEQUENTLY IT WAS NOT THE INTENTION THAT THE RIGHT TO SUCH BENEFITS SHOULD BE TERMINATED, SO LONG AS THE FAMILY RELATIONSHIP CONTINUES TO EXIST.'

"THE ACT OF DECEMBER 24, 1919, AS HERETOFORE STATED, INCLUDED STEPMOTHERS AS MEMBERS OF THE PERMITTED CLASS FOR AUTOMATIC INSURANCE BENEFITS MAKING THE AMENDMENT EFFECTIVE AS OF OCTOBER 6, 1917. HOWEVER, AS STATED BY MR. DECKER IN HIS MEMORANDUM, QUOTED ABOVE, THE WORD IMPLIES NOT ONLY THE BARE LEGAL RELATIONSHIP BY AFFINITY BUT ALSO AN ASSUMPTION BY THE STEPPARENT OF MUTUAL OBLIGATION OF SERVICE AND SUPPORT, THAT IS, AN ASSUMPTION OF A RELATIONSHIP IN LOCO PARENTIS. THIS THEORY IS WELL SUPPORTED IN LAW.

"ATTENTION IS INVITED TO THE DECISION OF THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA ON MAY 17, 1933, ADVANCE REPORT NO. 1, 171 S.E., 42. THAT CASE THERE WAS BEFORE THE COURT FOR CONSIDERATION THE QUESTION WHETHER A WOMAN WHO HAD BEEN MARRIED TO AN EMPLOYEE OF THE SOUTHERN RAILWAY COMPANY, WHO HAD LEFT HER HUSBAND AND HAD LIVED WITH AN ADULTERER PRIOR TO HIS DEATH COULD MAINTAIN AN ACTION FOR THAT DEATH AGAINST THE SOUTHERN RAILWAY COMPANY UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT (45 U.S.C.A. AS 51-59). IN THE COURSE OF ITS OPINION IN THAT CASE THE COURT STATES:

" "THE INSTRUCTIONS COMPLAINED OF WERE THESE:

" " "I CHARGE YOU IN THIS CONNECTION THAT WHERE A WIFE, A MARRIED WOMAN, ELOPES WITH AN ADULTERER AND WILLFULLY AND WITHOUT JUST CAUSE ABANDONS HER HUSBAND AND REFUSES TO LIVE WITH HIM, AND IS LIVING IN ADULTERY WITH ANOTHER, THAT THE UNFAITHFUL WIFE HAS NO RIGHTS AS A WIDOW, AND IS NOT ENTITLED TO BENEFIT FROM THE WRONGFUL DEATH OF HER DECEASED HUSBAND, * *

" "THERE IS, HOWEVER, A FUNDAMENTAL PRINCIPLE OF STATUTORY CONSTRUCTION THAT "IT IS THE DUTY OF THE COURT TO ASCERTAIN THE MEANING OF THE LEGISLATURE FROM THE WORDS USED AND THE SUBJECT-MATTER TO WHICH THE STATUTE RELATES, AND TO RESTRAIN ITS OPERATION WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT IF THE COURT IS SATISFIED THAT THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER INTENDED TO INCLUDE IN IT.' * * *

" "CONSISTENTLY WITH THE FOREGOING STATEMENTS, THE CASES OF * * *, WHILE NOT CONCLUSIVELY IN POINT, AFFORD THE CLEAR IMPLICATION THAT THE TERM "WIDOW," AS USED IN THE FEDERAL EMPLOYERS' LIABILITY ACT, SHOULD BE GIVEN A RESTRICTED RATHER THAN A LITERAL MEANING, SO AS TO CARRY INTO EFFECT THE OBVIOUS REMEDIAL OBJECT OF THE STATUTE TO CREATE A RIGHT OF ACTION AGAINST THE EMPLOYER FOR THE BENEFIT OF PERSONS HAVING EITHER IN LAW OR MORALS SOME CLAIM OF RIGHT TO THE SUPPORT AT THE HANDS OF THE DECEASED EMPLOYEE.

THE REQUIREMENT THAT A CONDITION OF IN LOCO PARENTIS ON THE PART OF THE STEPPARENT TO THE VETERAN MUST BE SHOWN TO HAVE EXISTED WAS SUBSEQUENTLY MODIFIED TO MEAN THAT THERE MUST BE A SHOWING THAT A "FRIENDLY FAMILY RELATIONSHIP" EXISTED BETWEEN THE VETERAN AND THE STEPPARENT IN ORDER TO CONFER ENTITLEMENT UPON THE PERSON BEARING THE LEGAL RELATIONSHIP OF STEPMOTHER OR STEPFATHER OR, TO PUT IT ANOTHER WAY, THERE MUST BE A SHOWING THAT THE RELATIONSHIP BETWEEN THE STEPPARENT AND THE VETERAN WAS SUCH THAT HAD IT BECOME NECESSARY FOR EITHER PARTY TO RENDER SERVICE OR SUPPORT TO THE OTHER, SUCH SERVICE OR SUPPORT WOULD HAVE BEEN GIVEN. THIS RULE HAS BEEN FOLLOWED BY THE VETERANS' ADMINISTRATION WITH REFERENCE TO AUTOMATIC INSURANCE, ADJUSTED SERVICE CREDIT, AND COMPENSATION. IT IS, OF COURSE, IMPERATIVE THAT ONE RULE BE FOLLOWED WITH RESPECT TO ALL BENEFITS.

IN THE MEMORANDA FROM THE ACTING CHIEF, VETERANS' SECTION OF THE GENERAL ACCOUNTING OFFICE, DATED SEPTEMBER 11, 1937, IN THE CASE OF LOUIS SILAS, A -4,056,229, XC-693,756, AND FROM THE CHIEF, VETERANS' SECTION OF THE GENERAL ACCOUNTING OFFICE, DATED NOVEMBER 20, 1937, IN THE CASE OF HOWARD E. SHUMWAY, A-4,699,791, XC-47,250, THAT SECTION TAKES THE POSITION THAT THE BARE LEGAL RELATIONSHIP OF STEPMOTHER IS SUFFICIENT TO BRING HER WITHIN THE DEFINITION OF "MOTHER" APPEARING IN SECTION 607 (C) OF THE WORLD WAR ADJUSTED COMPENSATION ACT AS AMENDED AND CITES IN SUPPORT THEREOF 15 COMP. GEN. 139, 141, WHEREIN IT WAS STATED, IN PART, THAT THE RELATIONSHIP OF STEPMOTHER TO A VETERAN EXISTING AT THE DATE OF HIS DEATH IS NOT AFFECTED BY THE SUBSEQUENT SEPARATION OF THE STEPMOTHER FROM THE FATHER OF THE VETERAN. THE DECISION IN 15 COMP. GEN. 139 DOES NOT RELATE TO THE QUESTION HERE INVOLVED AND IN THAT PARTICULAR DECISION IT IS SHOWN THAT THE VETERAN'S FATHER MARRIED HIS STEPMOTHER WHEN HE WAS ONLY ABOUT NINE YEARS OF AGE AND APPARENTLY THE VETERAN RESIDED IN THE SAME HOUSEHOLD WITH THEM AND A RELATIONSHIP OF IN LOCO PARENTIS EXISTED BETWEEN THE STEPMOTHER AND THE VETERAN.

IN THE PRESENT CASE, HOWEVER, PRIOR TO MAKING THE PROPOSED AWARD OF THE ADJUSTED COMPENSATION BENEFITS TO ISIAH WALTON, THE NATURAL FATHER OF THE VETERAN, THE FOLLOWING DETERMINATION HAD BEEN MADE CONCERNING THE STEPMOTHER:

"IT IS ALLEGED THAT THE VETERAN'S FATHER AND MOTHER WERE DIVORCED AND THAT SUBSEQUENTLY THE CHILDREN RESIDED WITH THE MOTHER. EVIDENCE SHOWS THAT AFTER THE MOTHER'S DEATH THE CHILDREN WERE TURNED OVER TO AN UNCLE, AND THAT AFTER THE DEATH OF THE UNCLE THE CHILDREN APPARENTLY MADE A HOME FOR THEMSELVES.

"IT WOULD APPEAR THAT AFTER THE DEATH OF THE MOTHER THE LOGICAL THING WOULD HAVE BEEN FOR THE FATHER AND STEPMOTHER TO HAVE TAKEN THE MINOR CHILDREN INTO THEIR HOME. THIS, HOWEVER, WAS NOT DONE EITHER AT THE DEATH OF THE MOTHER OR AT THE TIME OF THE DEATH OF THE UNCLE. FURTHERMORE, THE STEPMOTHER STATES THAT SHE DOES NOT FEEL SHE IS ENTITLED TO ANYTHING FROM THE ESTATE OF THE DECEASED VETERAN.'

IN VIEW OF THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER YOU ARE IN AGREEMENT WITH THE CONSTRUCTION ADOPTED AND FOLLOWED BY THE VETERANS' ADMINISTRATION INSOFAR AS CONCERNS THE ELIGIBILITY OF A STEPPARENT TO THE ADJUSTED SERVICE CREDIT AND THE $60.00 LUMP SUM AWARD PAYABLE UNDER THE PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED.

IT APPEARS FROM THE RECORD THAT THE VETERAN ENTERED THE MILITARY SERVICE ON NOVEMBER 23, 1917, AND DIED THEREIN ON JULY 3, 1918, UNMARRIED AND WITHOUT ISSUE; THAT HE IS NOW SURVIVED BY HIS FATHER, ISIAH WALTON, AND HIS STEPMOTHER, ANNA BRYANT WALTON, THE CLAIMANTS INVOLVED HEREIN, AND BY NO OTHER RELATIVES WITHIN THE CLASS OF PERSONS ENTITLED TO BENEFITS UNDER TITLE VI OF THE WORLD WAR ADJUSTED COMPENSATION ACT; THAT HIS MOTHER WAS SEPARATED FROM HIS FATHER PRIOR TO HER DEATH IN OCTOBER 1913; THAT THE VETERAN REMAINED IN HER CUSTODY UNTIL HER DEATH; THAT AFTER HER DEATH THE VETERAN WAS PLACED IN THE CARE OF A MATERNAL UNCLE AND THAT HE REMAINED IN THE UNCLE'S CARE AND CUSTODY UNTIL THE UNCLE DIED IN 1914; THAT DURING THE TIME HE WAS IN THE UNCLE'S CARE THE FATHER CONTRIBUTED OCCASIONAL GIFTS OF CLOTHING AND OTHER NECESSITIES TOWARD HIS MAINTENANCE; THAT ABOUT THE YEAR 1914 OR 1915 THE FATHER MARRIED ONE ANNA BRYANT, AND APPARENTLY THEY HAVE LIVED TOGETHER CONTINUOUSLY SINCE THAT TIME; THAT ON JUNE 19, 1936, THE FATHER FILED AN APPLICATION FOR THE VETERAN'S ADJUSTED SERVICE CREDIT AND IN THE DEVELOPMENT OF HIS CLAIM EVIDENCE WAS ADDUCED DISCLOSING THE EXISTENCE OF THE STEPMOTHER; THAT HE WAS ADVISED BY YOUR ADMINISTRATION THAT NO FURTHER CONSIDERATION COULD BE GIVEN HIS CLAIM UNTIL THE STEPMOTHER HAD FILED AN APPLICATION FOR THE ADJUSTED SERVICE CREDIT, AND HER RIGHTS AS THE PREFERRED DEPENDENT HAD BEEN DETERMINED; THAT ON JUNE 27, 1938, THE STEPMOTHER FILED AN APPLICATION FOR THE ADJUSTED SERVICE CREDIT, BUT HER CLAIM WAS DISALLOWED BECAUSE THE EVIDENCE SUBMITTED DID NOT SHOW THAT SHE HAD ASSUMED ANY OF THE OBLIGATIONS OF A FOSTER PARENT TO THE VETERAN. THEREAFTER, THE ADJUSTED SERVICE CREDIT IN THE AMOUNT OF $203.75, AND THE $60 LUMP-SUM PAYMENT AUTHORIZED UNDER SECTION 608 OF THE ACT OF JULY 3, 1926, 44 STAT. 829, WERE AWARDED TO THE FATHER AND THE CASE WAS SUBMITTED TO THIS OFFICE FOR PREAUDIT. IN THE COURSE OF AUDIT THE EVIDENCE SUBMITTED WAS DEEMED INSUFFICIENT UNDER THE DECISION OF THIS OFFICE TO REMOVE THE STEPMOTHER AS A CLAIMANT IN VIEW OF WHICH THE CASE WAS RETURNED TO THE VETERANS' ADMINISTRATION WITHOUT CERTIFICATION BY MEMORANDUM DATED NOVEMBER 18, 1938, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, SUPRA.

SECTION 601 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 828, PROVIDING AN ORDER OF PREFERENCE OF DEPENDENTS, DECLARES PRIORITY IN THE MOTHER OVER THE FATHER. SECTION 607 (C) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, 43 STAT. 130, UNDER THE CAPTION,"DEFINITIONS," PROVIDES AS FOLLOWS:

(C) THE TERMS "FATHER" AND "MOTHER" INCLUDE STEPFATHERS AND STEPMOTHERS, FATHERS AND MOTHERS THROUGH ADOPTION, AND PERSONS WHO HAVE, FOR A PERIOD OF NOT LESS THAN ONE YEAR, STOOD IN LOCO PARENTIS TO THE VETERAN AT ANY TIME PRIOR TO THE BEGINNING OF HIS SERVICE.

IN CONSTRUING THE FOREGOING PROVISIONS OF THE STATUTE, THIS OFFICE HELD IN 15 COMP. GEN. 139, PAGE 141, AS FOLLOWS:

IT IS WELL SETTLED THAT THE ENTIRE MATERNAL LINE, INCLUDING A STEPMOTHER, TAKES PRECEDENCE OVER THE PATERNAL LINE. THE RELATIONSHIP OF STEPMOTHER TO A VETERAN EXISTING AT THE DATE OF HIS DEATH, IS NOT AFFECTED BY THE SUBSEQUENT SEPARATION OF THE STEPMOTHER FROM THE FATHER OF THE VETERAN, THAT IS, THE RELATION OF "STEPMOTHER" IS THE SAME AS "MOTHER" WITHIN THE MEANING OF THE STATUTE. * * *

THE TERMS OF SECTION 607 (C) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, SUPRA, ARE CLEAR AND UNAMBIGUOUS, AND ADMIT OF NO CONSTRUCTION. SAID SECTION OF THE STATUTE CLEARLY ESTABLISHES THE STATUS OF A STEPMOTHER AS THAT OF A "MOTHER" OF THE VETERAN ON THE BASIS OF BARE RELATIONSHIP AT THE DATE OF HIS DEATH. THERE THUS APPEARS NO PROPER BASIS FOR THE ADMINISTRATIVE VIEW THAT A STEPMOTHER MUST, IN ADDITION TO ESTABLISHING HER STATUS AS STEPMOTHER, SHOW THAT SHE STOOD IN LOCO PARENTIS TO THE VETERAN, OR THAT THERE EXISTED A "FRIENDLY FAMILY RELATIONSHIP" BETWEEN THE STEPMOTHER AND THE VETERAN. TO SO HOLD WOULD REQUIRE READING INTO THE STATUTE WORDS WHICH ARE NOT THERE. IT SHOULD BE NOTED THAT THE STATUTE, IN ADDITION TO INCLUDING STEPMOTHERS SPECIFICALLY WITHIN THE DEFINITION OF "MOTHER," INCLUDES, ALSO, "PERSONS WHO HAVE, FOR A PERIOD OF NOT LESS THAN 1 YEAR, STOOD IN LOCO PARENTIS TO THE VETERAN AT ANY TIME PRIOR TO THE BEGINNING OF HIS SERVICE," THE LATTER QUOTED PHRASE IN NOWISE QUALIFIES, OR APPLIES TO, THE TERM STEPMOTHER. IF THE CONGRESS HAD INTENDED THAT STEPMOTHERS MUST SHOW SOMETHING IN ADDITION TO BARE RELATIONSHIP TO THE VETERAN, THE STATUTE WOULD HAVE SO PROVIDED IN EXPRESS LANGUAGE. THE OPINION IN THE LE FORGE CASE, QUOTED IN YOUR LETTER, WAS LIMITED BY ITS EXPRESS TERMS TO THE FACTS OF THAT PARTICULAR CASE ONE OF WHICH WAS THAT THE FATHER AND THE STEPMOTHER WERE DIVORCED PRIOR TO THE AMENDMENT TO THE WAR RISK INSURANCE ACT EXTENDING THE BENEFITS AUTHORIZED THEREUNDER TO STEPMOTHERS--- A SITUATION THAT IS NOT PRESENT IN THE INSTANT CASE AS THE FATHER AND STEPMOTHER APPARENTLY ARE STILL MARRIED AND LIVING TOGETHER. HOWEVER THAT MAY BE, SAID OPINION MAY NOT BE ACCEPTED AS CONTROLLING UNDER THE PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT.

THE DECISION OF THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA FROM WHICH YOU QUOTED DOES NOT APPEAR TO BE CONTROLLING IN THIS MATTER. THERE WAS INVOLVED IN THAT CASE ACTIONS ON THE PART OF THE WIDOW WHICH WERE REGARDED BY THE COURT AS EFFECTIVELY TERMINATING HER STATUS FOR THE PURPOSES OF THE STATUTE UNDER CONSIDERATION--- HER ACTIONS AS AN UNFAITHFUL WIFE BEING CONSIDERED AS CONSTITUTING A FORFEITURE OF ANY RIGHTS AS A WIDOW FOR THE PURPOSES OF THAT CASE. IN THE INSTANT CASE THE MARRIAGE OF THE STEPMOTHER TO THE VETERAN'S FATHER PRIOR TO HIS DEATH FIXED HER STATUS UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT WHICH STATUS HAS NOT BEEN TERMINATED.

YOUR ARE ADVISED, THEREFORE, THAT THE AUDIT ACTION IN THIS CASE WAS CORRECT AND IS HEREBY SUSTAINED.