B-93064, JANUARY 10, 1951, 30 COMP. GEN. 277

B-93064, JANUARY 10, 1951, 30 COMP. GEN. 277

SIX MONTHS' DEATH GRATUITY - ENTITLEMENT OF ILLEGITIMATE CHILDREN THE SIX MONTHS' DEATH GRATUITY STATUTES AUTHORIZING PAYMENTS TO DEPENDENT CHILDREN OF DECEASED SERVICEMEN SHOULD BE VIEWED AS INCLUDING ILLEGITIMATE CHILDREN WHERE THE RELATIONSHIP IS PROPERLY ESTABLISHED, SO THAT AN ILLEGITIMATE MINOR CHILD WHO WAS ACKNOWLEDGED IN WRITING BY A NAVY ENLISTED MAN, NOW DECEASED, AS HIS CHILD AND DESIGNATED AS BENEFICIARY TO RECEIVE HIS SIX MONTHS' DEATH GRATUITY MAY BE REGARDED AS THE CHILD OF THE DECEDENT UNDER THE ACT OF JUNE 4, 1920, AS AMENDED, WHICH PROVIDES FOR DEATH GRATUITY PAYMENTS TO BENEFICIARIES OF DECEASED MEMBERS OF THE NAVY.

DECISION BY ASSISTANT COMPTROLLER GENERAL YATES, JANUARY 10, 1951:

REFERENCE IS MADE TO LETTERS DATED JANUARY 17 AND APRIL 13, 1950, REGARDING A CLAIM FOR SIX MONTHS' DEATH GRATUITY BY THE LEGAL GUARDIAN OF THE MINOR CHILD OF A DECEASED NAVY ENLISTED MAN.

THE SIX MONTHS' DEATH GRATUITY PAYMENT IN THE CASE OF DECEASED MEMBERS OF THE NAVY IS GOVERNED BY THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. 943, IN MATERIAL PART, AS FOLLOWS:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY 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, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * *

IT APPEARS THAT THE SAID MINOR CHILD HAS BEEN ADOPTED BY THE ABOVE MENTIONED LEGAL GUARDIAN. IT FURTHER APPEARS THAT ON MAY 5, 1945, THE SAID ENLISTED MAN APPLIED FOR FAMILY ALLOWANCE ON BEHALF OF THE SAID MINOR CHILD, STATING IN SUCH APPLICATION THAT: "THAT CHILD IS MY ILLEGITIMATE CHILD BORN 24 APRIL 1945.' ALSO, IT IS REPORTED BY THE NAVY DEPARTMENT THAT ON A BENEFICIARY SLIP FOR THE SIX MONTHS' DEATH GRATUITY, DATED JUNE 11, 1946, THE DECEDENT STATED THAT HE WAS NOT MARRIED AND NAMED THIS MINOR CHILD AS THE BENEFICIARY THEREOF.

BY SETTLEMENT DATED DECEMBER 27, 1949, CLAIMANT WAS ADVISED THAT IT HAD BEEN HELD CONSISTENTLY THAT THE TERM "CHILD" OR "CHILDREN" AS USED IN THE SAID ACT OF JUNE 4, 1920, AS AMENDED, INCLUDED LEGITIMATE CHILDREN ONLY; THAT, ACCORDINGLY, THE SAID MINOR CHILD MIGHT NOT BE REGARDED AS THE CHILD OF THE DECEDENT FOR PURPOSES OF THE SIX MONTHS' DEATH GRATUITY; AND THAT PAYMENT ON THE CLAIM IN HER BEHALF WAS NOT AUTHORIZED.

THE ABOVE-QUOTED STATUTE DOES NOT DEFINE THE TERM "CHILD" USED THEREIN AND, BASED UPON THE COMMON-LAW CONSTRUCTION OF THE TERM "CHILD" AS USED IN WILLS AND STATUTES OF DESCENT AND DISTRIBUTION, DECISIONS OF THE ACCOUNTING OFFICERS HAVE BEEN TO THE EFFECT THAT GENERALLY SUCH TERM DOES NOT INCLUDE ILLEGITIMATE CHILDREN. HOWEVER, IN DECISION OF JULY 30, 1942, B-25657, 22 COMP. GEN. 85, THE LAWS AUTHORIZING THE SIX MONTHS' DEATH GRATUITY PAYMENT WERE REVIEWED AND, ON THE BASIS THAT SUCH LAWS WERE INTENDED PRIMARILY TO PROVIDED BENEFITS IN THE NATURE OF FREE LIFE INSURANCE FOR THE SUPPORT OF DEPENDENTS OF DECEASED SERVICEMEN, THE TERM "DEPENDENT RELATIVE" AS USED THEREIN WAS CONSTRUED IN THE LIGHT OF THE LAW OF INSURANCE. SUCH VIEW OF THE STATUTES WAS FOLLOWED IN DECISION OF SEPTEMBER 24, 1943, B-36497, 23 COMP. GEN. 216. ALSO, IN DECISION OF OCTOBER 30, 1944, B-41550, 24 COMP. GEN. 320, IT WAS HELD THAT THE RULE APPLIED IN THE MAJORITY OF CASES CONCERNING LIFE INSURANCE, THAT A RELATIONSHIP BY AFFINITY SURVIVES THE ENDING OF A MARRIAGE FROM WHICH IT AROSE WHERE THE CLOSE FAMILY TIES OF SUCH RELATIONSHIP HAVE CONTINUED IN FACT, IS FOR APPLICATION IN THE CASE OF THE SIX MONTHS' DEATH GRATUITY. IN VIEW OF SUCH CHANGED CONCEPT OF THE CHARACTER AND INTENT OF THE SIX MONTHS' DEATH GRATUITY STATUTES, A REEXAMINATION OF THE TERM CHILD" AS USED THEREIN IS JUSTIFIED.

INITIALLY, PROVISION FOR THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF NAVAL PERSONNEL WAS MADE BY THE ACT OF MAY 13, 1908, 35 STAT. 128 AND, AS AMENDED BY THE ACT OF AUGUST 22, 1912, 37 STAT. 329, SUCH STATUTE READ, SO FAR AS HERE MATERIAL, SUBSTANTIALLY AS DOES THE SAID ACT OF JUNE 4, 1920, AS AMENDED. THE ACT OF MAY 13, 1908, AS AMENDED, WAS REPEALED BY SECTION 312 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 408, UNDER WHICH ALLOTMENTS, ALLOWANCES, COMPENSATION, AND INSURANCE WERE PROVIDED FOR MILITARY AND NAVAL PERSONNEL AND THEIR DEPENDENTS DURING THE WORLD WAR COMMENCING APRIL 6, 1917. SECTION 22 OF THE SAID WAR RISK INSURANCE ACT, 40 STAT. 400, 401, PROVIDED THAT THE TERM "CHILD" AS USED THEREIN INCLUDED FOR THE PURPOSES THEREOF:

(D)AN ILLEGITIMATE CHILD, BUT, AS TO THE FATHER, ONLY, IF ACKNOWLEDGED BY INSTRUMENT IN WRITING SIGNED BY HIM, OR IF HE HAS BEEN JUDICIALLY ORDERED OR DECREED TO CONTRIBUTE TO SUCH CHILD'S SUPPORT, AND IF SUCH CHILD, IF BORN AFTER DECEMBER THIRTY-FIRST, NINETEEN HUNDRED AND SEVENTEEN, SHALL HAVE BEEN BORN IN THE UNITED STATES, OR IN ITS INSULAR POSSESSIONS. SOMEWHAT SIMILAR PROVISION IS CONTAINED IN THE WORLD WAR VETERANS' ACT OF 1924 (SECTION 3, 43 STAT. 607, AS AMENDED 38 U.S.C. 424), PRESENTLY PROVIDING PENSIONS AND INSURANCE FOR VETERANS AND THEIR DEPENDENTS; AND SECTION 602 OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, 54 STAT. 1009, AS AMENDED, 38 U.S.C. 802 (G), PROVIDES THAT:

THE INSURANCE SHALL BE PAYABLE ONLY TO A WIDOW, WIDOWER, CHILD (INCLUDING A STEPCHILD OR AN ILLEGITIMATE CHILD IF DESIGNATED AS BENEFICIARY BY THE INSURED) * * *.

ALSO, IT RECENTLY HAS BEEN HELD THAT "CHILDREN" WITHIN THE BENEFICIARY CLAUSE OF INSURANCE POLICIES MEANS ANY CHILD, INCLUDING ILLEGITIMATE CHILDREN, WHOM THE INSURED WAS REQUIRED TO SUPPORT, TURNER V. METROPOLITAN LIFE INSURANCE CO., 133 P.2D 859, REHEARING DENIED; AND THAT SUCH IS THE CASE UNDER A MUNICIPAL CHARTER PROVISION FOR BENEFITS TO A CHILD OF A CITY EMPLOYEE WHO DIES FROM INJURIES SUSTAINED IN THE PERFORMANCE OF HIS DUTIES, CIARLO V. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, 61 N.Y.S. 2D 751. CF. STAHL V. GRAND LODGE, A.O.U.W. 98 S.W. 643.

IN ADDITION TO THE EXPRESS INCLUSION OF CERTAIN ILLEGITIMATE CHILDREN WITH THE TERM "CHILD" AS USED IN THE SAID FEDERAL INSURANCE LAWS COVERING MILITARY PERSONNEL, AN ACKNOWLEDGED ILLEGITIMATE CHILD IS EXPRESSLY INCLUDED IN THE DEFINITION OF CHILD FOR PURPOSES OF THE FEDERAL LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT. SEE SECTION 2 OF THE ACT OF MARCH 4, 1927, 44 STAT. 1424, AS AMENDED, 33 U.S.C. 902 (14). AND, IN THE CASE OF MIDDLETON V. LUCKENBACK S.S. CO., 70 F.2D 326, THE COURT HELD THAT THE TERM "CHILD" AS USED IN SECTION 1 OF TH FEDERAL DEATH ACT, 41 STAT. 537, 46 U.S.C. 761--- WHICH ACT AUTHORIZES RECOVERY OR WRONGFUL DEATH ON THE HIGH SEAS--- INCLUDED BOTH LEGITIMATE AND LEGITIMATE CHILDREN. IN ARRIVING AT ITS CONCLUSION, THE COURT POINTED UT THAT THE WORD "CHILD," IN ITS ORDINARY MEANING, INCLUDES BOTH LEGITIMATES AND ILLEGITIMATES AND THAT, WHILE IN ITS LEGAL MEANING IT REFERS TO LEGITIMATE CHILDREN, SUCH LEGAL MEANING WAS INVOLVED CONTAINED NO REFERS TO LEGITIMATE CHILDREN, SUCH LEGAL MEANING WAS DERIVED FROM INHERITANCE MATTERS, WHEREAS THE FEDERAL STATUTE HERE INVOLVED CONTAINED EARNING. THE COURSE OF THE DECISION IT WAS STATED (PAGE 329):

THERE IS NO RIGHT OF INHERITANCE INVOLVED HERE. IT IS A STATUTE THAT CONFERS RECOVERY UPON DEPENDENTS, NOT FOR THE BENEFIT OF AN ESTATE, BUT FOR THOSE WHO BY OUR STANDARDS ARE LEGALLY OR MORALLY ENTITLED TO SUPPORT * * * THE PURPOSE AND OBJECT OF THE STATUTE IS TO CONTINUE THE SUPPORT OF DEPENDENTS AFTER A CASUALTY. * * * SUCH LANGUAGE APTLY DESCRIBES THE SIX MONTHS' DEATH GRATUITY.

IN VIEW OF THE FOREGOING AND THERE HAVING BEEN NO JUDICIAL INTERPRETATION OF THE GRATUITY STATUTES IN THIS RESPECT, I CONCLUDE THAT THE SIX MONTHS' DEATH GRATUITY STATUTES SHOULD BE VIEWED AS INCLUDING ILLEGITIMATE CHILDREN WHERE SUCH RELATIONSHIP IS PROPERLY ESTABLISHED. PRIOR DECISIONS TO THE CONTRARY WILL NO LONGER BE FOLLOWED.

THE RELATIONSHIP OF THE MINOR CHILD IN THIS CASE BEING SUFFICIENTLY ESTABLISHED BY THE MAN'S WRITTEN ACKNOWLEDGMENT THAT SHE WAS HIS CHILD AND HIS DESIGNATION OF HER AS BENEFICIARY TO RECEIVE THE PAYMENT HERE INVOLVED, A SETTLEMENT FOR THE AMOUNT OF THE SIX MONTHS' DEATH GRATUITY DUE WILL ISSUE IN DUE COURSE IN CLAIMANT'S FAVOR, AS HER LEGAL GUARDIAN.