B-154127, AUG. 28, 1964

B-154127, AUG. 28, 1964

TO MRS. LINA ELLIOTT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1964, AND ENCLOSURES, CONCERNING YOUR CLAIM FOR 6 MONTHS' DEATH GRATUITY AND THE CLAIM OF YOUR MOTHER, MRS. EMMA FANNIN, FOR UNPAID COMPENSATION DUE IN THE CASE OF HOMER WENDLE FANNIN, WHO DIED ON OCTOBER 29, 1963.

IN OUR PREVIOUS CORRESPONDENCE WE ADVISED YOU THAT MR. LOGAN ELLIOTT HAD ALSO FILED A CLAIM FOR THE 6-MONTHS' DEATH GRATUITY ON THE BASIS THAT HE STOOD IN LOCO PARENTIS TO THE DECEDENT AND THAT A DETERMINATION OF ENTITLEMENT COULD NOT BE MADE IN THE MATTER IN VIEW OF THE CONFLICTING EVIDENCE BEFORE US. MR. ELLIOTT ADVISED US THAT HE INTENDED TO TAKE THE MATTER TO COURT IN MANSFIELD, OHIO. IN REPLY TO OUR FURTHER INQUIRY AS TO THE STATUS OF THE COURT PROCEEDINGS, MR. ELLIOTT HAS ADVISED US THAT HE HAS DECIDED NOT TO TAKE THE MATTER TO COURT AND WILL ACCEPT OUR DECISION IN THE MATTER.

YOUR CLAIM IS ON THE BASIS THAT YOU STOOD IN LOCO PARENTIS TO THE DECEDENT PRIOR TO HIS ENTRANCE IN THE SERVICE. IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED A SWORN AFFIDAVIT EXECUTED ON DECEMBER 9, 1963, IN WHICH YOU STATED THAT HOMER WENDLE FANNIN WAS BORN ON DECEMBER 26, 1935, AT PORTSMOUTH, OHIO; THAT HIS MOTHER DIED IN DECEMBER 1940 AND WITHIN TWO WEEKS HIS FATHER, BALLARD FANNIN (NOW DECEASED) BROUGHT HIM TO YOUR HOME; AND THAT YOU, HIS PATERNAL AUNT, RAISED HIM UNTIL HE BECAME SELF- SUPPORTING. THIS IS SUBSTANTIATED BY LETTERS FROM YOUR SONS WALTER, WENCEL, AND WENDELL ELLIOTT.

ALSO, THE RECORD SHOWS THAT AFTER FULL INVESTIGATION OF THE MATTER THE ADMINISTRATOR OF VETERAN'S AFFAIRS DETERMINED THAT YOU AND YOUR HUSBAND STOOD IN LOCO PARENTIS TO THE DECEDENT AND AUTHORIZED AN AWARD TO YOU BOTH FOR COMPENSATION AND DEATH BENEFITS.

THE OTHER CLAIMANT, YOUR SON, LOGAN ELLIOTT, CLAIMS HE STOOD IN LOCO PARENTIS TO THE DECEDENT FROM NOVEMBER 1952 TO MARCH 1954 WHEN THE DECEDENT RESIDED WITH HIM AND HIS WIFE; THAT LOGAN AND THE DECEDENT WERE 18 AND 16 YEARS OF AGE RESPECTIVELY AT THE START OF THAT PERIOD, AND THAT THE DECEDENT WAS EMPLOYED A SUBSTANTIAL PART OF THE TIME. IN SUPPORT OF HIS CLAIM HE HAS SIGNED STATEMENTS FROM JOSEPH H. SEIBERT WHO RENTED THE PREMISES AT 200 WAYNE STREET, MANSFIELD, OHIO, TO HIM AND FROM ARCHIE WILSON WHO BOARDED IN HIS HOME. THE STATEMENTS ARE TO THE EFFECT THAT THE DECEDENT RESIDED WITH MR. AND MRS. LOGAN ELLIOTT DURING THE PERIOD NOVEMBER 1952 TO MARCH 1954, AT THE ABOVE ADDRESS.

THE 6-MONTH'S DEATH GRATUITY IS PAYABLE UNDER THE PROVISIONS OF 10 U.S.C. 1475, ET SEQ. CLAUSES (3) AND (4) OF SUBSECTION (A) OF THE SECTION 1477 PROVIDE FOR PAYMENT TO A DECEASED MEMBER'S PARENTS OR PERSONS IN LOCO PARENTIS. SUBSECTION (C) PROVIDES THAT CLAUSES (3) AND (4) OF SUBSECTION (A), SO FAR AS THEY APPLY TO PARENTS AND PERSONS IN LOCO PARENTIS, INCLUDE FATHERS AND MOTHERS THROUGH ADOPTION, AND PERSONS WHO STOOD IN LOCO PARENTIS TO THE DECEDENT FOR A PERIOD OF NOT LESS THAN ONE YEAR AT ANY TIME BEFORE HE ACQUIRED A STATUS IN THE ARMED FORCES DESCRIBED IN SECTION 1475 OR 1476 OF TITLE 10. IT FURTHER PROVIDES THAT ONLY ONE FATHER AND ONE MOTHER, OR THEIR COUNTERPARTS IN LOCO PARENTIS, MAY BE RECOGNIZED IN ANY CASE, AND PREFERENCE SHALL BE GIVEN TO THOSE WHO EXERCISED A PARENTAL RELATIONSHIP ON THE DATE, OR MOST NEARLY BEFORE THE DATE, ON WHICH THE DECEDENT ENTERED THAT STATUS.

A PERSON STANDING IN LOCO PARENTIS TO A CHILD IS ONE WHO HAS PUT HIMSELF IN THE SITUATION OF A LAWFUL PARENT BY ASSUMING THE OBLIGATIONS INCIDENT TO THE PARENTAL RELATION, WITHOUT GOING THROUGH THE FORMALITIES NECESSARY TO A LEGAL ADOPTION. THOMAS V. UNITED STATES, 189 F.2D 494, 503; BOURBEAU V. UNITED STATES, 76 F.SUPP. 778, 779. ALSO, IT HAS BEEN HELD THAT ONE WHO THROUGH KINDNESS OR CHARITY OR OTHER MOTIVE HAS RECEIVED A CHILD INTO HIS FAMILY AND TREATS THE CHILD AS A MEMBER THEREOF, STANDS IN LOCO PARENTIS OR IN PLACE OF PARENTS SO LONG AS THE CHILD REMAINS IN HIS FAMILY. TROTTER V. POLLAN, 311 S.W.2D 723, 729.

FURTHER, IT HAS BEEN HELD THAT EMANCIPATION OF A MINOR MEANS THE FREEING OF A CHILD FOR ALL THE PERIOD OF ITS MINORITY FROM THE CARE, CUSTODY, CONTROL, AND SERVICE OF ITS PARENTS. WURTH V. WURTH, 313 S.W.2D 161, 164. ALSO, THAT AN INFANT IS EMANCIPATED WHEN HE WORKS FOR WAGES OR SUPPORTS HIMSELF AND PAYS HIS BOARD AND OTHER EXPENSES WITH THE CONSENT OF THE PARENT, AND IF THE CHILD, AT THE TIME IS OF SUFFICIENT AGE AND PHYSICAL STRENGTH TO SUPPORT HIMSELF, HIS PARENT IS RELIEVED OF THE NECESSITY OF FURTHER CARING FOR HIM. SIMMONS V. STEWART, 248 S.W. 892.

THE RECORD SHOWS THAT WHEN THE DECEDENT WAS 5 YEARS OLD HIS FATHER PLACED HIM IN YOUR CARE AND THAT YOU RAISED HIM ALONG WITH YOUR OWN CHILDREN AS A MEMBER OF YOUR FAMILY AND THAT THIS RELATIONSHIP CONTINUED UNTIL YOUR RELINQUISHED PARENTAL CONTROL AND CONFERRED ON HIM THE RIGHT TO HIS OWN EARNINGS AND TO ACT ON HIS OWN RESPONSIBILITY. ALSO, THE RECORD SHOWS THAT WHILE HE TOOK UP RESIDENCE WITH LOGAN ELLIOTT, HE HAD ALREADY ACQUIRED THE STATUS OF AN EMANCIPATED MINOR, LIKE THAT OF LOGAN ELLIOTT. THEREFORE, IT IS CONSIDERED THAT MR. ELLIOTT DID NOT STAND TOWARD HIM IN LOCO PARENTIS AND DID NOT ASSUME THE OBLIGATIONS INCIDENT TO A PARENTAL RELATIONSHIP.

IN VIEW OF THE FOREGOING IT IS OUR VIEW THAT THE RECORD APPEARS SUFFICIENT TO ESTABLISH THAT YOU AND YOUR HUSBAND STOOD IN LOCO PARENTIS TO THE DECEDENT. ACCORDINGLY YOUR CLAIM FOR 6 MONTHS' DEATH GRATUITY IS ALLOWED AND SETTLEMENT WILL ISSUE IN DUE COURSE FOR THE CORRECT AMOUNT FOUND TO BE DUE. SETTLEMENT WILL ALSO ISSUE ON THE CLAIM OF YOUR MOTHER, MRS. EMMA FANNIN, FOR UNPAID COMPENSATION.