A-30380, MARCH 10, 1930, 9 COMP. GEN. 393

A-30380, MARCH 10, 1930, 9 COMP. GEN. 393

VETERANS' BUREAU - INSURANCE - ESCHEAT - ILLEGITIMATES IN DETERMINING WHETHER WAR RISK INSURANCE IF PAID TO THE ESTATE OF THE INSURED WHO WAS AN ILLEGITIMATE AND DIED INTESTATE, UNMARRIED AND WITHOUT ISSUE, WOULD ESCHEAT TO THE STATE OF THE RESIDENCE OF THE INSURED HAVING A STATUTE PROVIDING THAT "BASTARDS SHALL BE CAPABLE OF INHERITING AND TRANSMITTING INHERITANCE ON THE PART OF THEIR MOTHER, AS IF LAWFULLY BEGOTTEN," WHICH HAS NEVER BEEN CONSTRUED BY THE COURTS OF THAT STATE AS CONSTITUTING THE COLLATERAL HEIRS OF THE DECEASED MOTHER ALSO AS HEIRS OF THE ILLEGITIMATE, THERE WILL BE APPLIED THE RULE BASED ON THE WEIGHT OF AUTHORITY THAT THE COLLATERAL HEIRS OF THE DECEASED MOTHER MAY NOT INHERIT THE ESTATE OF THE ILLEGITIMATE, AND AS THE INSURANCE MIGHT ESCHEAT TO THE STATE UNDER SUCH CIRCUMSTANCES, PAYMENT THEREOF BY THE UNITED STATES IS PROHIBITED UNDER THE TERMS OF SECTION 303 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1310.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MARCH 10, 1930:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION IN THE PREAUDIT THE WAR RISK INSURANCE CASE OF CARL E. DOBBINS, C-307620, IN WHICH A LUMP SUM AWARD OF $10,000 HAS BEEN ADMINISTRATIVELY APPROVED IN FAVOR OF THE ADMINISTRATOR OF THE ESTATE OF THE DECEASED VETERAN, INVOLVING THE QUESTION WHETHER THE INSURANCE ESCHEATED TO THE UNITED STATES UNDER THE PROVISIONS OF SECTION 303 OF THE WORLD WAR VETERANS' ACT AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1310, PROVIDING, IN SO FAR AS HERE MATERIAL, AS FOLLOWS:

IF NO PERSON WITHIN THE PERMITTED CLASS BE DESIGNATED AS BENEFICIARY FOR YEARLY RENEWABLE TERM INSURANCE BY THE INSURED EITHER IN HIS LIFETIME OR BY HIS LAST WILL AND TESTAMENT, * * * THERE SHALL BE PAID TO THE ESTATE OF THE INSURED THE PRESENT VALUE OF THE MONTHLY INSTALMENTS THEREAFTER PAYABLE, SAID VALUE TO BE COMPUTED AS OF DATE OF LAST PAYMENT MADE UNDER ANY EXISTING AWARD: * * * PROVIDED FURTHER, THAT IN CASES WHEN THE ESTATE OF AN INSURED WOULD ESCHEAT UNDER THE LAWS OF THE PLACE OF HIS RESIDENCE THE INSURANCE SHALL NOT BE PAID TO THE ESTATE BUT SHALL ESCHEAT TO THE UNITED STATES AND BE CREDITED TO THE MILITARY AND NAVAL INSURANCE APPROPRIATION. THIS SECTION SHALL BE DEEMED TO BE IN EFFECT AS OF OCTOBER 6, 1917.

THE VETERAN, WHILE IN THE MILITARY SERVICE, APPLIED FOR AND WAS GRANTED $10,000 TERM INSURANCE FOR WHICH HE NAMED HIMSELF AS BENEFICIARY. HE DIED AUGUST 9, 1919, WHILE IN THE MILITARY SERVICE, A RESIDENT OF WEST VIRGINIA, INTESTATE, UNMARRIED AND WITHOUT ISSUE. HE WAS THE ILLEGITIMATE AND ONLY CHILD OF ONE JULIA DOBBINS, WHO PREDECEASED HIM IN 1902. WHEN MAKING APPLICATION FOR INSURANCE HE REQUESTED THAT HIS INSURANCE CERTIFICATE BE SENT TO LIZA A. WATKINS, A FRIEND, LIVING AT IT MAN, W.VA., TO WHOM HIS BODY WAS SENT AND BY WHOM BURIED. THIS WOMAN CLAIMED HIS INSURANCE IN 1919, BUT AS SHE WAS NOT DESIGNATED AS BENEFICIARY AND WAS NOT WITHIN THE PERMITTED CLASS, HER CLAIM WAS, OF COURSE, DENIED. THE INSURANCE WAS NOT OTHERWISE AWARDED IN MONTHLY INSTALLMENTS PRIOR TO MARCH 4, 1925, THE DATE OF THE ABOVE QUOTED STATUTE, FOR THE REASON THAT THE BUREAU WAS UNABLE TO LOCATE ANY ONE WITHIN THE PERMITTED CLASS OF BENEFICIARIES AS ENUMERATED IN SECTION 402 OF THE WAR RISK INSURANCE ACT, AS AMENDED. IN 1928 INQUIRY WAS MADE BY ONE H. W. DUSHKOFF, ATTORNEY, APPARENTLY ON BEHALF OF A NIECE OF THE DECEASED MOTHER OF THE VETERAN, AND PROOF IS NOW WITH THE RECORD THAT THIS ATTORNEY HAS BEEN APPOINTED IN WEST VIRGINIA AS THE ADMINISTRATOR OF THE VETERAN'S ESTATE. THE BUREAU PROPOSES PAYMENT OF THE INSURANCE IN A LUMP SUM TO THIS ADMINISTRATOR UNDER THE PROVISIONS OF SECTION 303 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, SUPRA. THOSE CLAIMING UNDER THE ESTATE ARE ALLEGED TO BE A BROTHER AND SISTER OF THE VETERAN'S MOTHER AND CHILDREN OF A NUMBER OF DECEASED BROTHERS AND SISTERS OF THE VETERAN'S MOTHER.

SECTION 3905 OF THE WEST VIRGINIA CODE (1913, ACTS 1882 C. 94), PROVIDES AS FOLLOWS:

BASTARDS SHALL BE CAPABLE OF INHERITING AND TRANSMITTING INHERITANCE ON THE PART OF THEIR MOTHER, AS IF LAWFULLY BEGOTTEN.

THE QUESTION IN THIS CASE IS WHETHER UNDER THIS STATE STATUTE OF WEST VIRGINIA, THE DOMICILE OF THE VETERAN, HE COULD HAVE TRANSMITTED HIS ESTATE TO THE BROTHERS AND SISTERS AND NIECES AND NEPHEWS OF HIS MOTHER WHO PREDECEASED HIM. IF NOT, THE INSURANCE IN THIS CASE MIGHT ESCHEAT TO THE STATE OF WEST VIRGINIA, AND, ACCORDINGLY, WOULD ESCHEAT TO THE UNITED STATES UNDER THE ABOVE-QUOTED SECTION OF THE WORLD WAR VETERANS' ACT.

I HAVE FOUND NO WEST VIRGINIA CASES CONSTRUING THIS STATE STATUTE. THE BUREAU APPARENTLY HAS BASED ITS AWARD ON THE VIRGINIA CASE OF GARLAND V. HARRISON, 8 LEIGH 368, DECIDED BY THE COURT OF APPEALS OF VIRGINIA IN MAY, 1837, CONSTRUING AN IDENTICAL STATUE ADOPTED IN 1785, AT THE TIME WHEN THE PRESENT STATE OF WEST VIRGINIA WAS A PART OF THE STATE OF VIRGINIA, WHICH DECISION HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

UNDER THE STATUTE OF VIRGINIA DIRECTING THE COURSE OF DESCENTS, BASTARDS ARE CAPABLE OF TRANSMITTING INHERITANCE ON THE PART OF THEIR MOTHER; AND WHERE A BASTARD DIES INTESTATE, LEAVING NO CHILDREN OR DESCENDANTS, BUT LEAVING HIS MOTHER SURVIVING, AND TWO BASTARD BROTHERS BY OTHER FATHERS, THE ESTATE WILL PASS TO THE MOTHER AND THE TWO BASTARD BROTHERS.

IN SUCH CASE THE TWO BASTARD BROTHERS, BEING REGARDED AS OF THE HALF BLOOD ONLY, WILL EACH INHERIT ONLY HALF SO MUCH AS THE MOTHER.

THIS CASE IS CITED WITH APPROVAL IN AT LEAST TWO LATER CASES BUT IN WHICH THE FACTS ARE NOT SIMILAR TO THE FACTS IN THE PRESENT CASE, TO WIT, BENNETT ET AL. V. TOLER ET AL., 15 GRAT. 588, 605, AND HEPBURN V. DUNDAS, 13 GRAT. 219.

IN THE OPINION OF THE COURT IN THE FIRST CITED VIRGINIA CASE, PAGE 379, THERE WAS SPECIFICALLY REPUDIATED THE DEFINITION OF THE WORDS "ON THE PART OF THE MOTHER" APPEARING IN THE STATE STATUTE OF VIRGINIA, WHICH HAD PREVIOUSLY BEEN ANNOUNCED IN 1820 BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF STEVENSON'S HEIRS V. SULLIVANT, 5 WHEAT. 207, 260, WHICH WAS AS FOLLOWS:

IN THE CONSTRUCTION OF THIS SECTION, IT IS NEVER TO BE LOST SIGHT OF, THAT THE APPELLANTS ARE TO BE CONSIDERED AS BASTARDS, LIABLE TO ALL THE DISABILITIES TO WHICH THE COMMON LAW SUBJECTS THEM, AS SUCH, EXCEPT THOSE FROM WHICH THE SECTION ITSELF EXEMPTS THEM. THOUGH ILLEGITIMATE, THEY MAY INHERIT AND TRANSMIT INHERITANCE, ON THE PART OF THE MOTHER, IN LIKE MANNER AS IF THEY HAD BEEN LAWFULLY BEGOTTEN OF THE MOTHER. WHAT IS THE LEGAL EXPOSITION OF THESE EXPRESSIONS? WE UNDERSTAND IT TO BE THAT THEY SHALL HAVE A CAPACITY TO TAKE REAL PROPERTY BY DESCENT IMMEDIATELY OR THROUGH THEIR MOTHER IN THE ASCENDING LINE; AND TRANSMIT THE SAME TO THEIR LINE AS DESCENDANTS, IN LIKE MANNER AS IF THEY WERE LEGITIMATE. THIS IS UNIFORMLY THE MEANING OF THE EXPRESSIONS, "ON THE PART OF THE MOTHER OR FATHER," WHEN USED IN REFERENCE TO THE COURSE OF DESCENT OF REAL PROPERTY, IN THE PATERNAL OR MATERNAL LINE. * * * THE OBJECT OF THE LEGISLATURE WOULD SEEM TO HAVE BEEN, TO REMOVE THIS IMPEDIMENT TO THE TRANSMISSION OF INHERITABLE BLOOD FROM THE BASTARD IN THE DESCENDING LINE, AND TO GIVE HIM A CAPACITY TO INHERIT IN THE ASCENDING LINE, AND THROUGH HIS MOTHER. * *

IN NEITHER THE CASE CITED BY THE SUPREME COURT NOR THE CASE CONSIDERED BY THE VIRGINIA COURT WAS THERE SPECIFICALLY INVOLVED THE QUESTION HERE DISCLOSED, TO WIT, WHETHER THE COLLATERAL HEIRS OF THE DECEASED MOTHER MIGHT INHERIT THE ESTATE OF THE ILLEGITIMATE. IN THE CASE BEFORE THE VIRGINIA COURT THE MOTHER WAS LIVING AND SHARED IN THE ESTATE. IN THE CASE BEFORE THE SUPREME COURT THE MOTHER WAS DEAD AND HER CHILDREN, NOT HER BROTHERS AND SISTERS, WERE DENIED THE ESTATE OF THE ILLEGITIMATE. THERE HAS BEEN FOUND NO SUBSEQUENT EXPRESSION BY THE SUPREME COURT OF THE UNITED STATES, UNDER THE VIRGINIA STATUTE. BASED SOLELY ON THE REASONING USED BY THE VIRGINIA COURT, THERE CAN BE NO DOUBT BUT THAT THE COURT CONSIDERED THE COLLATERAL HEIRS OF THE MOTHER AS ENTITLED TO THE ESTATE OF HER ILLEGITIMATE CHILD, PARTICULARLY WHERE AN ESCHEAT TO THE STATE WOULD OTHERWISE OCCUR. SEE PAGE 370 OF THE VIRGINIA DECISION. AND IF IN THE CASE BEFORE THE VIRGINIA COURT THERE HAD BEEN INVOLVED THE CLAIMS OF THE BROTHERS AND SISTERS, NEPHEWS AND NIECES OF THE MOTHER, AS IN THIS CASE, THIS OFFICE WOULD NOT BE DISPOSED TO QUESTION THE RIGHT OF THE ADMINISTRATOR OF THE ESTATE IN THIS CASE UNDER THE MAXIM OF STARE DECISIS, AND THE GENERAL PRINCIPLE THAT THE ADOPTION BY ONE STATE OF A STATUTE OF ANOTHER STATE USUALLY CARRIES WITH IT THE JUDICIAL CONSTRUCTION THEREOF AT LEAST UNTIL THE STATE ADOPTING THE MEASURE HAS OTHERWISE CONSTRUED THE SAME. BUT IN LEWIS' SUTHERLAND STATUTORY CONSTRUCTION, 2D EDITION, SECTION 486, IT IS STATED:

THE MAXIM OF STARE DECISIS APPLIES ONLY TO DECISIONS OR POINTS ARISING AND DECIDED IN CAUSES; IT HAS BEEN HELD NOT TO EXTEND TO REASONING, ILLUSTRATIONS, AND REFERENCES IN OPINIONS. * * * THE REASONING ADOPTED, THE ANALOGIES AND ILLUSTRATIONS PRESENTED IN REAL OR SUPPOSED CASES, IN AN OPINION, MAY BE USED AS ARGUMENT IN OTHER CASES BUT NOT AS AUTHORITY. * * * A JUDICIAL DECISION IS TO BE REGARDED AS CONCLUSIVE NOT ONLY OF THE POINT PRESENTED IN ARGUMENT AND EXPRESSLY DECIDED, BUT OF EVERY OTHER PROPOSITION NECESSARILY INVOLVED IN REACHING THE CONCLUSION EXPRESSED.

ACCORDINGLY, IN THE INSTANT CASE THIS OFFICE MAY NOT ACCEPT AS SETTLED IN WEST VIRGINIA THAT THE COLLATERAL HEIRS OF THE DECEASED MOTHER OF AN ILLEGITIMATE MAY INHERIT, HIS ESTATE, PARTICULARLY WAR RISK INSURANCE. THE TWO CASES ABOVE MENTIONED, THE FACTS IN THE CASE BEFORE THE SUPREME COURT MORE NEARLY COINCIDE WITH THE FACTS HERE DISCLOSED. AND IN KENTUCKY (ADMITTED JUNE 1, 1792, UNDER AUTHORITY OF THE ACT OF FEBRUARY 4, 1791, 1 STAT. 189) WHICH ALSO WAS A PART OF VIRGINIA AT THE TIME THE ORIGINAL VIRGINIA STATUTE WAS ADOPTED (1785), THE CONSISTENT RULE IS STATED IN THE CASE OF CROAN ET AL. V. PHELPS ET AL., 23 L.R.A. 753, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A STATUTE PROVIDING THAT "BASTARDS SHALL BE CAPABLE OF INHERITING AND TRANSMITTING AN INHERITANCE ON THE PART OF OR TO THE MOTHER" DOES NOT PROVIDE FOR THE TRANSMISSION OF THE ESTATE THROUGH THE MOTHER TO HER COLLATERAL KINDRED.

SEE ALSO KENTUCKY CASE OF MCSURLEY V. VENTERS, 104 S.W. 365, 366, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

UNDER GEN.ST.C. 31, SEC. 5, IN FORCE IN 1892, PROVIDING THAT BASTARDS SHOULD BE CAPABLE OF INHERITING AND TRANSMITTING AN INHERITANCE ON THE PART OF OR TO THE MOTHER, A BASTARD'S COLLATERAL KINDRED, HIS UNCLES AND AUNTS, WERE INCAPABLE OF INHERITING FROM HIM, AND IF HE LEFT NO DIRECT DESCENDANTS, HIS MOTHER BEING DEAD, HIS LAND ESCHEATED TO THE COMMONWEALTH.

THE PRINCIPLE ON WHICH THE CASES DENYING THE RIGHT OF INHERITANCE TO THE COLLATERAL KINDRED OF THE MOTHER REST IS THAT THE MOTHER IS CONSIDERED AS HAVING ESTABLISHED A NEW FAMILY WITH THE BIRTH OF THE ILLEGITIMATE, OF WHICH SHE IS THE HEAD, AND THAT HER RELATIVES ARE PRESUMED NOT TO HAVE RECOGNIZED ANY RELATIONSHIP WITH THE ILLEGITIMATE, AND CONSEQUENTLY ARE NOT HIS HEIRS.

IN THE L.R.A. NOTES TO THE FIRST CITED KENTUCKY CASE, THERE ARE SET FORTH REFERENCES TO THE JUDICIAL CASES CONSTRUING VARIOUS STATE LAWS, PARTICULARLY THE WORDS "ON THE PART OF THE MOTHER" AND IT IS APPARENT THAT IN A GREAT MAJORITY OF CASES THE HEIRS OF THE MOTHER ARE EXCLUDED FROM PARTICIPATING IN THE ESTATE OF THE ILLEGITIMATE. THE FIRST PARAGRAPH OF THIS NOTE IS AS FOLLOWS:

IN CONSTRUING THE PHRASE ILLEGITIMATES MAY INHERIT AND TRANSMIT INHERITANCE "ON THE PART OF THE MOTHER," THERE IS SOME CONFLICT OF AUTHORITY, MANY CASES HOLDING WITH THE MAIN CASE FOR A STRICT CONSTRUCTION OF THIS STATUTE AND EXTENDING ITS PROVISIONS NO FARTHER THAN ABSOLUTELY REQUIRED UNDER THE WORDS OF THE ACT, AS IN JACKSON V. JACKSON, 78 KENTUCKY 390, 39 AM.REP. 246; SCROGGIN V. ALLAN, 2 DANA 363; ALLEN V. RAMSEY, 1 MET./KY.) 635; BERRY V. OWENS, 5 BUSH. 452; BENT V. ST. BRAIN, 30 MO. 268; GIVSON V. MOULTON, 2 DISNEY (OHIO) 158; CURTIS V. HE WINS, 11 MET. 294; GRUBB'S APP. 58 PA. 56; STECKEL'S APP. 64 PA. 493; STOVER V. BOSWELL, 3 DANA 233; SUTTON V. SUTTON, 87 KY. 216; REMMINGTON V. LEWIS, 8 B.MON. 606; LITTLE V. LAKE, 8 OHIO 289.

SEE ALSO THE CASE OF BLAIR ET AL. V. ADAMS ET AL., 59 FED.REP. 243, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

A STATUTE DECLARING THAT BASTARDS "SHALL BE CAPABLE OF INHERITING FROM AND THROUGH THEIR MOTHERS AND OF TRANSMITTING ESTATES * * * IN LIKE MANNER AS IF THEY HAD BEEN LAWFULLY BEGOTTEN OF SUCH MOTHERS" (REV.ST.TEX.ART. 1657) GIVES A BASTARD NO CAPACITY TO TRANSMIT HIS ESTATE THROUGH HIS DECEASED MOTHER, TO HER SURVIVING BROTHERS AND SISTERS.

EVEN UNDER A STATUTE OF PENNSYLVANIA PROVIDING THAT THE MOTHER AND HER ILLEGITIMATE CHILD SHALL BE THE NEXT OF KIN OF EACH OTHER, IT HAS BEEN HELD THAT THE BROTHERS AND SISTERS OF THE MOTHER OF THE ILLEGITIMATE DO NOT INHERIT THE ESTATE OF THE ILLEGITIMATE. 58 PA. 55. SEE ALSO THE GENERAL PRINCIPLES WITH SUPPORTING CASES STATED IN 7 CORPUS JURIS 964.

THE CLEAREST CASES WHERE THE COLLATERAL HEIRS OF THE MOTHER HAVE BEEN HELD TO BE ENTITLED ARE THOSE WHERE THE STATE STATUTES SPECIFICALLY SO PROVIDE. SEE FOR INSTANCE THE CASE OF OSBORNE V. MCDONALD, 159 FED.REP. 791, 794, CONSTRUING SECTION 3306 OF THE CODE OF LAWS OF WASHINGTON STATE, PROVIDING AS FOLLOWS:

IF ANY ILLEGITIMATE CHILD SHALL DIE INTESTATE WITHOUT LAWFUL ISSUE, HIS ESTATE SHALL DESCEND TO HIS MOTHER OR IN CASE OF HER DECEASE TO HER HEIRS AT LAW.

THIS CASE WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS, 167 FED.REP. 894. SEE, ALSO, GENERALLY THE CASE OF THE LESSEE OF BREWER V. BLOUGHER ET AL., 10 LAW.ED. 408.

IN VIEW OF THE RULES AS SUPPORTED BY THE GREAT WEIGHT OF AUTHORITY, AND AS THERE HAS BEEN FOUND NO CONTROLLING CASE DECIDED IN WEST VIRGINIA UNDER THE STATE STATUTE IN QUESTION, THIS OFFICE MUST CONCLUDE THAT AS THE TERM INSURANCE IN THIS CASE MIGHT ESCHEAT TO THE STATE OF WEST VIRGINIA IF PAYMENT WERE MADE TO THE ADMINISTRATOR OF THE ESTATE OF THE VETERAN, THERE HAS BEEN AN ESCHEAT OF THE INSURANCE TO THE UNITED STATES UNDER THE PROVISIONS OF SECTION 303 OF THE WORLD WAR VETERAN'S ACT, AS AMENDED, SUPRA. ACCORDINGLY, THE PROPOSED PAYMENT TO THE ADMINISTRATOR OF THE ESTATE OF THE INSURED IS NOT APPROVED, AND THE ESTATE WILL BE LEFT TO ITS RECOURSE IN THE UNITED STATES DISTRICT COURT AS PROVIDED BY LAW. IF A SUIT SHALL BE FILED AGAINST THE UNITED STATES IN THIS CASE, IN ADDITION TO THE WEIGHT OF AUTHORITY AS ABOVE SET FORTH, THERE SHOULD BE SPECIFICALLY CALLED TO THE ATTENTION OF THE COURT THE PECULIAR FACTS DISCLOSED IN THIS CASE, SHOWING PARTICULARLY THAT THE INSURED DESIGNATED HIMSELF AS BENEFICIARY, WHICH IN HIS CASE, HE HAVING NO HEIRS, IN EFFECT CONSTITUTED THE INSURANCE ONLY AGAINST THE HAPPENING OF HIS PERMANENT TOTAL DISABILITY; ALSO, THAT HE HAD NOT BEEN FOR YEARS IN TOUCH WITH, AND DID NOT KNOW THE WHEREABOUTS OF, ANY OF HIS MOTHER'S RELATIVES; THAT HE REQUESTED HIS INSURANCE CERTIFICATE TO BE SENT TO A STRANGER IN BLOOD; AND THAT HIS BODY WAS SENT TO AND BURIED BY THIS SAME STRANGER IN BLOOD; ALL OF WHICH TEND TO SHOW THAT THERE WAS LITTLE PROBABILITY THE INSURED WOULD HAVE DEVISED ANY OF HIS ESTATE TO HIS MOTHER'S RELATIVES--- A POINT WHICH HAS BEEN MADE IN SOME OF THE CASES PERMITTING THE COLLATERAL HEIRS OF THE MOTHER TO INHERIT THE ESTATE OF AN ILLEGITIMATE CHILD.