B-84757, JUN 22, 1950

B-84757, JUN 22, 1950

PRECIS-UNAVAILABLE

MRS. MARIA CRISTINA GONZALES:

REFERENCE IS MADE TO YOUR UNDATED LETTER, POSTMARKED FEBRUARY 17, 1949, REQUESTING RECONSIDERATION OF YOUR CLAIM AS THE LEGAL GUARDIAN OF THE CHILDREN OF THE LATE MANUEL INBASTIDA, MASTER SERGEANT, UNITED STATES ARMY, RETIRED, FOR THE ARREARS OF PAY DUE THE ESTATE OF THE DECEDENT.

IN LETTERS DATED JUNE 15 AND AUGUST 24, 1948, FROM THE CLAIMS DIVISION OF THIS OFFICE, YOU WERE INFORMED THAT, IN VIEW OF THE CIRCUMSTANCES INVOLVED, THIS OFFICE IS NOT AUTHORIZED TO ALLOW THE AMOUNT DUE TO ANYONE OTHER THAN A DUTY APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE, THAT IS, AN ADMINISTRATOR OR EXECUTOR, APPOINTED BY THE PROPER COURT AT THE DECEDENT'S LAST DOMICILE.

THE RECORD SHOWS THAT THE LATE ENLISTED MAN WAS RETIRED FROM THE UNITED STATES ARMY ON JANUARY 31, 1946, FOR DISABILITY, AT WHICH TIME HE HELD THE GRADE OF MASTER SERGEANT, AND THAT HE DIED ON APRIL 18, 1946. THE APPLICATION WHICH YOU FILED FOR THE RETIRED PAY DUE THE DECEDENT'S ESTATE SHOWS YOUR RELATIONSHIP TO HIM AS A COMMON-LAW WIFE AND THAT HE ALSO IS SURVIVED BY FOUR CHILDREN AND A SISTER. BY CLAIMS DIVISION LETTER DATED AUGUST 19, 1946, YOU WERE INFORMED OF THE STATUTORY PROVISIONS GOVERNING THE SETTLEMENT OF ACCOUNTS OF DECEASED ARMY PERSONNEL, AND THAT SINCE COMMON LAW MARRIAGES ARE NOT RECOGNIZED UNDER THE LAWS OF PUERTO RICO, NO PAYMENT COULD BE MADE IN CONNECTION WITH YOUR CLAIM. SUBSEQUENTLY, YOU FURNISHED A CERTIFICATE COPY OF A RESOLUTION OR DEGREE OF THE DISTRICT COURT OF SAN JUAN, PUERTO RICO, WHEREIN A DETERMINATION WAS MADE THAT MANUEL INBASTIDA LICUAGA DIED ON APRIL 18, 1946, AT AGUADILLA, PUERTO RICO, THE PLACE OF HIS LAST DOMICILE; THAT HE WAS NOT MARRIED AT THE TIME OF HIS DEATH; THAT HE LEFT AS HIS HEIRS HIS FOUR CHILDREN, ACKNOWLEDGED BY HIM, NAMED IRAN, MARGARITA, MANUEL, AND NORMA, ALL MINORS, ISSUE OF HIS COMMON-LAW MARITAL UNION WITH YOU; AND THAT THE SOLE HEIRS OF THE DECEDENT ARE THE SAID FOUR CHILDREN. FURTHER, THE COURT APPOINTED YOU AS TUTOR, OR LEGAL GUARDIAN OF THE CHILDREN, AUTHORIZING YOU TO NOT IN SUCH CAPACITY AS MOTHER WITHOUT FURNISHING SECURITY. EACH APPOINTMENT ALSO IS EVIDENCED BY AN AUTHENTICATED COPY OF THE LETTERS OF GUARDIANSHIP ISSUED TO YOU.

THE CIVIL CODE OF PUERTO RICO (1930) PROVIDES:

"SECTION 112.-- CHILDREN ARE LEGITIMATE, ILLEGITIMATE, OR LEGITIMIZED.

"LEGITIMATE CHILDREN ARE THOSE BORN IN WEDLOCK.

"ILLEGITIMATE CHILDREN ARE THOSE BORN OUT OF WEDLOCK.

"ILLEGITIMATE CHILDREN MAY BE LEGITIMIZED BY THE SUBSEQUENT MARRIAGE OF THEIR PARENTS.

"SECTION 122.-- THE LEGITIMATION SHALL BECOME EFFECTIVE FROM AND AFTER THE DATE OF THE WEDLOCK OF THE PARENTS.

"SECTION 125. NATURAL CHILDREN ARE THOSE BORN OUT OF WEDLOCK, FROM PARENTS WHO, AT THE MOMENT WHEN EACH CHILDREN WERE CONCEIVED OR WERE BORN, COULD HAVE INTERMARRIED WITH OR WITHOUT DISPENSATION.

"THE NATURAL CHILD MAY BE RECOGNIZED BY THE FATHER AND MOTHER CONJOINTLY OR BY ONE OF THEM ONLY EITHER IN THE RECORD OF BIRTH OR IN THE TESTAMENT OR IN ANY OTHER PUBLIC INSTRUMENT.

"SECTION 127.-- A RECOGNIZED NATURAL CHILD HAS THE RIGHT,

1. TO USE THE SURNAME OF THE PARENT MAKING THE RECOGNITION.

2. TO BE SUPPORTED BY THE SAME.

3. TO RECEIVE THE HEREDITARY PORTION DETERMINED BY THIS CODE.

"INTESTATE SUCCESSION

"SECTION 902.-- IN DEFAULT OF LEGITIMATE OR LEGITIMIZED DESCENDANTS OR ASCENDANCES, THE NATURAL CHILDREN LEGALLY RECOGNIZED SHALL SUCCEED THE DECEASED IN THE WHOLE OF THE INHERITANCE. ***"

UNDER THE FOREGOING PROVISIONS, A NATURAL CHILD WHO IS RECOGNIZED IN THE PRESCRIBED MANNER BY ONE OR BOTH OF THE PARENTS, WHILE NOT LEGITIMATED, THEREBY REQUIRES CERTAIN RIGHTS OF INHERITANCE. IN VIEW OF SUCH PROVISIONS AND SINCE IT HAS BEEN JUDICIALLY DETERMINED THAT THE LATE ENLISTED MAN RECOGNIZED HIS FOUR CHILDREN, WHO ARE HIS SOLE HEIRS, THEY APPEAR TO BE ENTITLED TO RECEIVE THE RETIRED PAY DUE HIS ESTATE. ACCORDINGLY, A SETTLEMENT WILL ISSUE IN YOUR FAVOR AS GUARDIAN OF THE SAID CHILDREN FOR THE AMOUNT OF RETIRED PAY FOUND DUE.

WITH RESPECT TO YOU CLAIM FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR THE DECEDENT'S CHILDREN FROM THE DATE HE WAS ADVANCED TO STAFF SERGEANT, MARCH 11, 1941, TO JANUARY 1, 1944, IT MAY BE STATED THAT SECTION 10 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, PROVIDED IN PERTINENT PART AS FOLLOWS:

"EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE, IN THE ACTIVE MILITARY, NAVAL, OR COAST GUARD SERVICE OF THE UNITED STATES HAVING A DEPENDENT AS DEFINED IN SECTION 4 OF THIS ACT, SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONTHLY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND ***.

SECTION 4 OF THE SAID ACT, 56 STAT. 361, DEFINED THE TERM "DEPENDENT" AS USED IN THE ACT, AS FOLLOWS:

"THE TERM "DEPENDENT" AS SEEN IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT, PROVIDED, THAT THE TERM, 'CHILDREN' SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE."

SIMILAR PROVISIONS IN EFFECT PRIOR TO ENACTMENT OF THE ABOVE-QUOTED SECTIONS MORE CONTAINED, RESPECTIVELY, IN THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND SECTION 4 OF THE ACT OF JUNE 30, 1942, 42 STAT. 627, AS AMENDED.

IT HAS BEEN HELD THAT THE DEPENDENTS TO ON WHOSE ACCOUNT THE MOMENTARY ALLOWANCE IN LIEU OF QUARTERS IS AUTHORIZED TO BE PAID UNDER THE AFOREMENTIONED PROVISIONS INCLUDE ONLY THE CLASSES OF PERSONS SPECIFICALLY DESIGNATED, THAT THE TERM "CHILDREN" AS USED THEREIN MAY NOT BE REGARDED AS INCLUDING ILLEGITIMATE CHILDREN, AND THAT AN ENLISTED MAN IS NOT ENTITLED TO PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF HIS ILLEGITIMATE CHILDREN UNLESS SUCH CHILDREN HAVE BEEN LEGITIMATED. 23 COMP.GEN. 516. IN THAT CONNECTION, IT WILL BE NOTED THAT WHILE THE ABOVE-QUOTED SECTIONS OF THE CIVIL CODE OF PUERTO RICO PROVIDE FOR THE LEGAL RECOGNITION OF A NATURAL CHILD BY ONE OR BOTH OF THE PARENTS, SUCH RECOGNITION DOES NOT LEGITIMATE THE CHILD, THE STATUTE PROVIDING FOR THE LEGITIMATION OF SUCH CHILD ONLY BY THE SUBSEQUENT MARRIAGE OF ITS PARENTS. ACCORDINGLY, SINCE IT APPEARS FROM THE RECORD THAT THE CHILDREN ON WHOSE ACCOUNT THE SAID MONETARY ALLOWANCES IS CLAIMED WERE NOT THE DECEDENT'S LEGITIMATE CHILDREN, THE PAYMENT OF SUCH ALLOWANCE IS NOT AUTHORIZED.