B-41820, DECEMBER 30, 1944, 24 COMP. GEN. 479

B-41820, DECEMBER 30, 1944, 24 COMP. GEN. 479

SIX MONTHS' DEATH GRATUITY PAY - ADOPTION AS AFFECTING NATURAL FATHER'S STATUS AS "RELATIVE" THE NATURAL FATHER OF AN ARMY ENLISTED MAN WHO HAD BEEN LEGALLY ADOPTED AS A CHILD MAY NOT BE CONSIDERED AS A "RELATIVE" WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY STATUTE OF DECEMBER 17, 1919, AS AMENDED, SO AS TO BE ENTITLED, UPON DEATH OF THE ENLISTED MAN, TO THE PAYMENT AUTHORIZED BY THE STATUTE, EVEN THOUGH THE ENLISTED MAN HAD RETURNED TO RESIDE WITH HIM TWO YEARS BEFORE INDUCTION INTO THE ARMY AND HAD DESIGNATED HIM AS A BENEFICIARY TO RECEIVE THE PAYMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, DECEMBER 30, 1944:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1944, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF EARL FURZE, FATHER AND DESIGNATED BENEFICIARY OF DONALD E. LARSON, SERIAL NO. 36,044,756, DECEASED, LATE PRIVATE, FIELD ARTILLERY, U.S. ARMY, FOR $360, REPRESENTED AS BEING EQUAL TO THE PAY OF THE DECEASED FOR SIX MONTHS, THE CLAIM ARISING UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, SUPP. III. ALSO, REFERENCE IS MADE TO YOUR FOURTH INDORSEMENT OF SEPTEMBER 16, 1944, SUBMITTING, THROUGH THE OFFICE OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, A COPY OF THE ORDER OF ADOPTION REQUESTED IN MY LETTER TO YOU OF JULY 1, 1944.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, PROVIDES, IN PERTINENT PART AS FOLLOWS:

HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. * * *

THE PROVISIONS OF SAID ACT WERE EXTENDED TO THE OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10, 1941, 55 STAT. 796, RETROACTIVE TO AUGUST 27, 1940.

THE COPY OF REPORT OF DEATH, DATED APRIL 3, 1944, SHOWS THAT DONALD E. LARSON, ARMY SERIAL NO. 36,044,756, PRIVATE, FIELD ARTILLERY, U.S. ARMY, WAS KILLED IN ACTION FEBRUARY 18, 1944, IN THE CENTRAL PACIFIC AREA; THAT HIS DEATH WAS IN LINE OF DUTY, AND WAS NOT DUE TO HIS OWN MISCONDUCT; AND THAT HE DESIGNATED AS HIS BENEFICIARIES UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED (1) EARL FURZE, FATHER; (2) BARBARA BARKERSON, SISTER. IT APPEARS FROM THE " PUBLIC VOUCHER FOR SIX MONTHS' DEATH GRATUITY PAY," WAR DEPARTMENT, FINANCE DEPARTMENT, FORM NO. 6, THAT THE DECEASED WAS NOT SURVIVED BY WIDOW OR CHILD.

THE EVIDENCE SUBMITTED SHOWS THAT AN ORDER OF ADOPTION WAS ISSUED IN THE COUNTY COURT OF WINNEBAGO COUNTY, STATE OF ILLINOIS, MAY 16, 1921, AS FOLLOWS:

IN THE MATTER OF THE PETITION OF EDWARD LARSON AND AMELIA LARSON FOR AN ORDER DECLARING DONALD EARL FURZE TO BE THEIR ADOPTED CHILD.

AND NOW ON THIS DAY, THE ABOVE CAUSE COMING ON TO BE HEARD UPON THE PETITION AND PROOFS ADDUCED IN SUPPORT OF THE FACTS THEREIN STATED, AND IT APPEARING TO THE COURT FROM THE PETITION AND EVIDENCE HEREIN THAT SAID PETITIONERS ARE RESIDENTS OF WINNEBAGO COUNTY, ILLINOIS, AND DESIRE TO ADOPT SAID CHILD; THAT SAID CHILD IS A MALE, AND OF ABOUT THE AGE OF TWO YEARS, AND THAT SAID CHILD WAS TWO YEARS OF AGE ON THE 20TH DAY OF DECEMBER A.D. 1920, AND FURTHER, THAT SAID PETITIONERS DESIRE THE NAME OF SAID CHILD CHANGED TO THAT OF DONALD EARL LARSON; THAT THE MOTHER OF SAID CHILD IS DEAD, BUT THE FATHER IS LIVING, AND CONSENTS TO THE ADOPTION OF SAID CHILD BY SAID PETITIONERS, AND FURTHER, THAT SAID EARL FURZE HAS ENTERED HIS APPEARANCE HEREIN EXPRESSLY WAIVING THE SERVICE OF SUMMONS UPON HIM AS REQUIRED BY THE STATUTES OF THE STATE OF ILLINOIS; THAT SAID CHILD HAS NO LEGAL GUARDIAN; THAT SAID PETITIONER, AMELIA LARSON, IS THE AUNT OF SAID CHILD, THAT SAID PETITIONERS BEAR TO EACH OTHER THE RELATION OF HUSBAND AND WIFE. THAT SAID PETITIONERS ARE OF SUFFICIENT ABILITY TO PROPERLY SUPPORT, EDUCATE, AND CARE, FOR SAID CHILD, AND THAT IT WOULD, THEREFORE, BE TO THE INTEREST OF SAID CHILD TO BE THE ADOPTED CHILD OF SAID PETITIONERS.

IT IS THEREFORE ORDERED AND ADJUDGED BY THE COURT THAT THE SAID DONALD EARL FURZE BE THE ADOPTED CHILD OF SAID PETITIONERS AND CAPABLE OF INHERITING THEIR ESTATE; THAT THE NAME OF SAID CHILD BE CHANGED TO THAT OF DONALD EARL LARSON, AND THAT THE CLERK'S FEES IN THIS PROCEEDING BE AND THE SAME ARE HEREBY REMITTED.

IT IS STATED THAT THE DECEASED CONTINUED TO LIVE WITH HIS ADOPTED PARENTS UNTIL TWO YEARS PRIOR TO HIS INDUCTION IN THE ARMED SERVICES, WHEN HE RETURNED TO THE HOME OF HIS NATURAL FATHER, EARL FURZE, AND RESIDED WITH HIM CONTINUOUSLY THEREAFTER.

VERNIER, IN HIS WORK ON AMERICAN FAMILY LAWS, VOLUME IV, AT PAGE 405, SAYS, WITH REGARD TO THE EFFECT OF ADOPTION---

QUESTIONS CONCERNING THE EFFECT OF ADOPTION MOST FREQUENTLY ARISE WITH REFERENCE TO RIGHTS OF INHERITANCE * * *. HOWEVER, THE PROBLEM IS OFTEN AN IMPORTANT ONE WITH REGARD TO OTHER INCIDENTS OF THE PARENT CHILD RELATIONSHIP. IT MAY SAFELY BE SAID, AS A GENERAL PROPOSITION, THAT AN ADOPTION EFFECTS A LEGAL AS WELL AS A PRACTICAL SUBSTITUTION OF PARENTS. THE NATURAL PARENTS LOSE AND THE ADOPTIVE PARENTS RECEIVE OR ASSUME THE RIGHTS TO THE CHILD'S CUSTODY, SERVICES, AND EARNINGS, THE RIGHT TO CONTROL THE CHILD, AND THE OBLIGATIONS OF MAINTENANCE, EDUCATION, ETC.; AND THE CHILD OWES THE DUTIES ARISING OUT OF THE RELATIONSHIP TO HIS ADOPTIVE PARENTS AND NOT TO HIS NATURAL PARENTS. * * *

AND IN 2 C.J.S. 450, SEC. 58, IT IS SAID---

ORDINARILY, UNDER THE ADOPTION STATUTES, AN ADOPTION HAS THE GENERAL EFFECT OF TERMINATING THE LEGAL RELATIONS BETWEEN THE CHILD AND ITS NATURAL PARENTS * * *. SEE, ALSO, 1 C.J. 1397, SEC. 125.

SINCE THE DECEASED SOLDIER BECAME, BY ADOPTION, THE CHILD OF EDWARD LARSON AND AMELIA LARSON, EARL FURZE, THE PRESENT CLAIMANT IS NOT THEREAFTER TO BE CONSIDERED AS BEING A "RELATIVE" OF THE DECEASED SOLDIER WITHIN THE MEANING OF THE DEATH GRATUITY STATUTE. CF. 5 COMP. GEN. 92, AND 23 ID. 371. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER SUBMITTED, WHICH IS RETAINED IN THIS OFFICE.