B-157825, OCT. 29, 1965

B-157825, OCT. 29, 1965

TO MISS ADELE V. LONG:

THIS LETTER IS IN REPLY TO THE LETTER OF YOUR ATTORNEY MR. IRL B. BARIS DATED SEPTEMBER 27, 1965, APPEALING FROM OUR OFFICE SETTLEMENT OF SEPTEMBER 3, 1965, DENYING YOUR CLAIM AS A CHILD OF CARL E. HALEY, SR., A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, FOR THE UNPAID COMPENSATION DUE AT HIS DEATH ON AUGUST 6, 1964.

THE BASIS FOR THE DISALLOWANCE OF YOUR CLAIM WAS THAT AN ILLEGITIMATE CHILD UNDER THE LAWS OF THE STATE OF MISSOURI COULD NOT BE REGARDED AS BEING EMBRACED BY THE WORD "CHILD" AS USED IN THE ACT OF AUGUST 3, 1950, 5 U.S.C. 61F-K.

IN HIS LETTER MR. BARIS ASSERTS THAT HE CONSIDERS THE CASE OF DE SYLVA V. BALLENTINE, 351 U.S. 570 (1956), CITED IN OUR OFFICE SETTLEMENT AS BEING INAPPROPRIATE TO THE INSTANT CLAIM, AND URGES FOR CONSIDERATION THE CASE OF UNITED STATES V. PHILIPPINE NATIONAL BANK, 292 F.2D 743 (D.C. COURT OF APPEALS, 1961), IN WHICH THE WORD "CHILD" IS INTERPRETED TO INCLUDE AN ILLEGITIMATE CHILD, THERE BEING NO MENTION IN THAT CASE OF ANY NECESSITY TO RESORT TO THE LAWS OF THE STATE OF A DECEDENT'S DOMICILE TO DETERMINE THE MEANING OF SUCH WORD.

THE ACT OF AUGUST 3, 1950, PROVIDES IN PERTINENT PART AS FOLLOWS:

"61F. SETTLEMENT OF ACCOUNTS OF DECEASED OFFICERS AND EMPLOYEES; ORDER OF PRECEDENCE FOR PAYMENT.

"IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED CIVILIAN OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA (INCLUDING WHOLLY OWNED AND MIXED- OWNERSHIP GOVERNMENT CORPORATIONS) ALL UNPAID COMPENSATION DUE SUCH AN OFFICER OR EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OR PRECEDENCE, AND SUCH PAYMENT SHALL BE A BAR TO RECOVERY BY ANY OTHER PERSON OF AMOUNTS SO PAID:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH, AND RECEIVED BY SUCH AGENCY PRIOR TO THE OFFICER'S OR EMPLOYEE'S DEATH;

"SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH OFFICER, OR EMPLOYEE;

"THIRD, IF THERE BE NO BENEFICIARY OR SURVIVING SPOUSE, TO THE CHILD OR CHILDREN OF SUCH OFFICER OR EMPLOYEE, AND DESCENDANTS OF DECEASED CHILDREN, BY REPRESENTATION;

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF SUCH OFFICER OR EMPLOYEE, OR THE SURVIVOR OF THEM;

"FIFTH, IF THERE BE NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED OFFICER OR EMPLOYEE, OR IF THERE BE NONE, TO THE PERSON OR PERSONS DETERMINED TO BE ENTITLED THERETO UNDER THE LAWS OF THE DOMICILE OF THE DECEASED OFFICER OR EMPLOYEE.'

OUR VIEW IS THAT IN THE ABSENCE OF A DEFINITION IN THE ABOVE STATUTE OR THE LEGISLATIVE HISTORY THEREOF OF THE TERM "CHILD OR CHILDREN" IT IS PROPER TO RESORT TO THE LAWS OF THE STATE OF A DECEASED EMPLOYEE'S DOMICILE TO DETERMINE THE MEANING OF SUCH TERM. UNDER THE LAWS OF MISSOURI, THE STATE OF DOMICILE OF THE DECEDENT, AN ILLEGITIMATE CHILD CAN ONLY INHERIT THROUGH ITS MOTHER UNLESS LEGITIMATED BY THE SUBSEQUENT MARRIAGE OF THE PARENTS. VERNON'S ANNOTATED MISSOURI STATUTES, VOL. 26, SECTIONS 474.060 AND 474.070. THE RESORT TO STATE LAWS IN THE SITUATION HERE INVOLVED IS SUPPORTED BY THE HOLDINGS OF THE UNITED STATES COURT IN DE SYLVA V. BALLENTINE, SUPRA, AND THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN BRANTLEY V. SKEENS, 266 F.2D 447 (1959). THE LATTER CASE WAS DECIDED IN THE SAME COURT OF APPEALS AS UNITED STATES V. PHILIPPINE NATIONAL BANK, SUPRA. IN BRANTLEY V. SKEENS, SUPRA, THE QUESTION FOR DETERMINATION BY THE COURT WAS ONE OF ENTITLEMENT TO BENEFITS UNDER A POLICY OF LIFE INSURANCE ISSUED UNDER THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT. THE OBLIGATION ON THE PART OF THE GOVERNMENT IN THAT CASE WAS CONTRACTUAL IN NATURE, JUST AS IT IS IN THE INSTANT CASE, AND ALSO INVOLVED INTERPRETATION OF ALMOST IDENTICAL LANGUAGE RELATING TO PAYMENTS TO "CHILD OR CHILDREN.' MOREOVER, THE COURT IN BRANTLEY V. SKEENS, SUPRA, CITED AS AUTHORITATIVE DE SYLVA V. BALLENTINE, SUPRA, WHILE THE COURT IN UNITED STATES V. PHILIPPINE NATIONAL BANK, SUPRA, MADE NO REFERENCE TO THE DE SYLVA CASE.

IT SHOULD ALSO BE NOTED THAT IN THE PHILIPPINE NATIONAL BANK CASE, SUPRA, THE COURT STATES THAT IT WAS DETERMINING ENTITLEMENT TO AN INSURANCE GRATUITY CONFERRED BY GENEROUS LEGISLATION AIMED AT EASING THE BURDEN OF MILITARY PERSONNEL IN TIME OF WAR AND INTENDED TO BE LIBERALLY CONSTRUED.

ON THE BASIS OF THE FOREGOING, OUR SETTLEMENT OF SEPTEMBER 3, 1965, DISALLOWING YOUR CLAIM MUST BE SUSTAINED.