B-119057, MARCH 26, 1954, 33 COMP. GEN. 409

B-119057, MARCH 26, 1954, 33 COMP. GEN. 409

SIX MONTH'S DEATH GRATUITY - DEPENDENCY OR INSURABLE INTEREST REQUIREMENT THE MINOR NIECE OF A DECEASED SERVICEMAN, WHO WAS DESIGNATED BY DECEDENT AS PRIMARY BENEFICIARY OF SIX MONTHS' DEATH GRATUITY PAYMENT AUTHORIZED BY ACT OF DECEMBER 17, 1919, AS AMENDED, BUT WHO WAS NEITHER DEPENDENT ON UNCLE NOR HAD INSURABLE INTEREST IN HIS LIFE, HAS NO LEGAL CLAIM TO SUCH DEATH GRATUITY; HOWEVER, DECEDENT'S SISTER, ALTERNATE DESIGNATED BENEFICIARY, WHO HAS INSURABLE INTEREST IN HIS LIFE BY REASON OF RELATIONSHIP ALONE, IS ENTITLED TO BE PAID THE SIX MONTHS' DEATH GRATUITY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COLONEL CLYDE W. O-HERN, DEPARTMENT OF THE AIR FORCE, MARCH 26, 1954:

BY LETTER DATED FEBRUARY 26, 1954, THE HEADQUARTERS UNITED STATES AIR FORCE FORWARDED YOUR LETTER OF JANUARY 18, 1954, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF MRS. MARGARET W. STETLER, SISTER AND ALTERNATE BENEFICIARY OF THE LATE MASTER SERGEANT SAMUEL REX WELLS, AF 1311 1338, FOR $1,556.76 AS A DEATH GRATUITY OF SIX MONTHS' PAY UNDER THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, 10 U.S.C. 903.

THE SAID ACT OF DECEMBER 17, 1919, AS AMENDED, PROVIDES THAT---

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 BRANCH, OFFICE, OR OFFICERS OF THE ARMY THE SECRETARY OF THE ARMY MAY FROM TIME TO TIME DESIGNATE 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. * * * ( ITALICS SUPPLIED.)

THE COPY OF THE CASUALTY REPORT ATTACHED TO THE VOUCHER SHOWS THAT MASTER SERGEANT SAMUEL REX WELLS DIED NOVEMBER 28, 1952, NEAR TACOMA, WASHINGTON, AS THE RESULT OF AN AIRPLANE ACCIDENT; THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT DUE TO HIS OWN MISCONDUCT; THAT HIS WIFE AND SON WERE KILLED IN THE SAME ACCIDENT; AND THAT THE DECEASED HAD DESIGNATED HIS NIECE, PATRICIA STETLER, AS PRIMARY BENEFICIARY AND HIS SISTER, MARGARET W. STETLER, AS ALTERNATE BENEFICIARY.

ALSO ATTACHED TO THE VOUCHER SUBMITTED BY YOU IS AN AFFIDAVIT EXECUTED BY MARGARET W. STETLER AND LLOYD STETLER, THE PARENTS OF PATRICIA STETLER, AS FOLLOWS:

WE, MARGARET W. STETLER AND LLOYD STETLER, DILLSBURG, PENNSYLVANIA, STATE THAT WE ARE THE MOTHER AND FATHER OF PATRICIA STETLER, WHO WAS DESIGNATED AS THE PRINCIPAL BENEFICIARY TO RECEIVE THE DEATH GRATUITY OF HER UNCLE, SAMUEL REX WELLS, M/SGT., USAF, AF 1311 1338; THAT PATRICIA STETLER IS A MINOR; THAT PATRICIA STETLER IS AND HAS BEEN A RESIDENT OF OUR HOUSEHOLD SINCE HER BIRTH; THAT WE HAVE CONTINUOUSLY EXERCISED PARENTAL CONTROL AND AUTHORITY OVER THE SAID PATRICIA STETLER SINCE HER BIRTH; THAT THE SAID PATRICIA STETLER HAS BEEN CONTINUOUSLY DEPENDENT UPON US FOR HER SOLE SUPPORT; AND THAT SHE HAS NOT BEEN AT ANY TIME DEPENDENT UPON THE SAID SAMUEL REX WELLS FOR HER SUPPORT NOR HAS SAMUEL REX WELLS AT ANY TIME CONTRIBUTED ANYTHING TO HER SUPPORT.

WHEREFORE AND SINCE THE PATRICIA STETLER HAS NOT BEEN AT ANY TIME OR IN ANY DEGREE DEPENDENT UPON SAMUEL REX WELLS FOR HIS (SIC) SUPPORT, WE, THE SAID MARGARET W. STETLER AND LLOYD STETLER, AS MOTHER AND FATHER AND NATURAL GUARDIANS OF PATRICIA STETLER, WAIVE AND RELINQUISH FOR HER ANY RIGHTS OR INTERESTS SHE MAY HAVE IN A CLAIM AGAINST THE UNITED STATES GOVERNMENT FOR A DEATH GRATUITY PAYMENT UNDER THE PROVISIONS OF THE ACT OF 17 DECEMBER 1919 AS AMENDED AND DO BIND OURSELVES TO INDEMNIFY THE UNITED STATES GOVERNMENT AGAINST ANY FUTURE CLAIM BY THE SAID PATRICIA STETLER FOR SUCH DEATH GRATUITY PAYMENT.

YOU STATE THAT DOUBT EXISTS AS TO THE PROPER PAYEE IN THIS CASE, SINCE THE RECORDS REVEAL THAT PATRICIA STETLER, MINOR NIECE OF THE FORMER SERVICE MEMBER, WAS DESIGNATED AS PRIMARY BENEFICIARY; AND ALSO THAT NO INFORMATION IS AVAILABLE IN YOUR OFFICE RELATING TO THE RELINQUISHMENT OF THE RIGHTS OF A MINOR TO RECEIVE DEATH GRATUITY PAY.

IT APPEARS, HOWEVER, THAT THE RIGHT OF MRS. STETLER TO THE DEATH GRATUITY PAY IN THIS CASE DOES NOT DEPEND ON THE ATTEMPTED WAIVER OF THE RIGHTS OF THE MINOR WHO IS THE DESIGNATED PRIMARY BENEFICIARY. THE LAWS AUTHORIZING THE SIX MONTHS' DEATH GRATUITY PAYMENT ARE CONSIDERED AS INTENDED PRIMARILY TO PROVIDE BENEFITS IN THE NATURE OF LIFE INSURANCE FOR THE SUPPORT OF DEPENDENTS OF DECEASED SERVICEMEN AND, THEREFORE, THE TERM "DEPENDENT RELATIVE" HAS BEEN CONSTRUED BY THIS OFFICE IN THE BROAD SENSE OF THE LAW OF INSURANCE AS INCLUDING, IN ADDITION TO RELATIVES WHO ARE ACTUALLY DEPENDENT, THOSE PERSONS WHO BY REASON OF THEIR RELATIONSHIP TO THE DECEASED HAVE AN INSURABLE INTEREST IN HIM, THOUGH NOT ACTUALLY DEPENDENT. 22 COMP. GEN. 85; 23 ID. 216; 24 ID. 320, AND 30 ID. 277.

IT HAS BEEN HELD THAT, ORDINARILY, RELATIONSHIP ALONE BETWEEN UNCLE AND NEPHEW OR NIECE DOES NOT ESTABLISH AN INSURABLE INTEREST. 29 AM. JUR. 326; 44 C.J.S. 907; MCRAE V. WARMACK, 135 S.W. 807, 33 L.R.A., N.S., 949; W. A. DOODY COMPANY V. GREEN, 62 S.E. 984, AN HARREL'S ADM R. V. HARREL, 23 S.W. 2D 922. IF THE NIECE IN THIS CASE COULD SHOW THAT SHE WAS MATERIALLY SUPPORTED BY HER UNCLE OR HAD GOOD REASONS TO EXPECT SUCH SUPPORT, THE RESULT MIGHT BE DIFFERENT, BUT IT IS APPARENT THAT NO SUCH SHOWING CAN BE MADE. UNDER THE CIRCUMSTANCES, IT IS CONCLUDED THAT SINCE THE NIECE WAS NEITHER DEPENDENT ON HER UNCLE NOR HAD AN INSURABLE INTEREST IN HIS LIFE, SHE HAS NO LEGAL CLAIM TO THE DEATH GRATUITY.

IT IS GENERALLY RECOGNIZED, HOWEVER, THAT THE MOTHER, FATHER, BROTHER, OR SISTER OF A PERSON HAS AN INSURABLE INTEREST IN HIS LIFE BY REASON OF THE RELATIONSHIP ALONE. 22 COMP. GEN. 85; WILTON V. NEW YORK LIFE INSURANCE COMPANY, 34 TEX. CIV. APP. 156, 78 S.W. 403. SEE ALSO, AS TO BROTHERS AND SISTERS, AETNA LIFE INSURANCE COMPANY V. FRANCE, 94 U.S. 561. ON THAT BASIS IT APPEARS THAT MRS. MARGARET W. STETLER, THE DECEDENT'S SISTER AND ALTERNATE DESIGNATED BENEFICIARY, IS ENTITLED TO BE PAID THE SIX MONTHS' DEATH GRATUITY, SINCE THE NIECE IS NOT ENTITLED, AND PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.