entitled to benefits under section 6 of the War Claims Act of 1948, as amended.

2. The Commission's regulation limiting eligible children claimants to natural born, adopted and posthumous children, thereby excluding stepchildren, is reasonable, one contemplated by the act, and has the full force of law.

3. Where the Commission is on notice that a deceased prisoner of war or deceased civilian American citizen is survived by stepchildren and the claim filed contains no affirmative evidence to indicate whether these stepchildren were or were not adopted by the deceased in his lifetime, an inquiry will be made to establish whether the deceased adopted the stepchildren and thereby brought them within the purview of the act.

May a "foster child" be deemed to be an eligible claimant within the contemplation of section 5 (d) (3) of the War Claims Act of 1948, as amended,87 and the Regulations of the War Claims Commission promulgated thereunder?

FACTS

The claim was initially filed by Mrs. Mary Meehan Harries, a civilian American citizen who was interned in the Philippines during World War II. She died January 23, 1950, before the claim was adjudicated. Mrs. Kenneth Kendall Neely, filed claim as foster child, for the detention benefits to which Mrs. Harries might have been entitled had she lived.

The record discloses that the deceased was interned at Santo Tomas in Manila from January 7, 1942, until March 20, 1942. She was released on "sick parole" from March 20, 1942, to February 1, 1944, and was reinterned at Santo Tomas from the latter date until February 3, 1945.

The record further contains a photostatic copy of an undated letter, represented to have been written by deceased, Mrs. Mary Meehan

Public Law 896, 80th Cong., July 3, 1948; 62 Stat. 1240; 50 U. S. C. App. 2001 et seq.

Harries, to the Veterans' Administration, in relation to insurance benefits administered by that agency, wherein it is stated:

For your information, I and my late husband, Lt. Col. Herbert Langley Harries, considered Mrs. Kenneth K. Neely as and acted towards her as our child and stood in a position of loco parentis to her, she having entered our household about age 10 and there remaining until about age 18, when she married and our relationship has remained as parent and child thereafter. That during the entire relationship I and my late husband, Lt. Col. Herbert Langley Harries, assumed the responsibility of and did support and care for said Mrs. Kenneth K. Neely and at all times during her marriage when she left our household to establish a household of her own with her husband, we have stood ready and willing to assume the responsibility for her support and care as if she were issue of my marriage to the late Lt. Col. Herbert Langley Harries.

The records of the Veterans' Administration disclose that Mrs. Neely was a niece of deceased.

The record is devoid of any evidence of an adoption, nor is there an allegation that the claimant was adopted by the decedent. The only evidence present is that claimant became a member of the deceased's household at an early age, that she was cared for and nurtured by the deceased and her husband, and that it was the apparent intention of the latter that the relationship of parent and child exist.

DISCUSSION

The pertinent portions of the War Claims Act of 1948, as amended, here considered, include among the categories of survivors eligible to participate in benefits under sections 5 (a) to (e) and 6, a child and or children of deceased civilian internees and former prisoners of war. The act is silent on the question of stepchildren, foster children, adopted children, and the like. The Commission's regulations restrict the term "child" to a "natural" or "adopted" child.

A foster child has been defined to be one who has been cared for by a foster parent as distinguished from an adoptive parent; and foster parents have been defined as persons who have performed the duties of parents to the child of another by rearing the child as their own.88 The adjective "foster" has been defined to mean, "affording, receiving, or sharing nourishment, nurture, sustenance, although not related by blood or by ties of nature, or the like." The fact that the foster parents stood in loco parentis to the child is not determinative of the issue here presented.

89

While the Commission's regulation defining parents 90 allows any person standing in loco parentis to a deceased prisoner of war, to

In re Norman's Estate (1940), 209 Minn. 19, 295 N. W. 63, 66.

In re Norman's Estate, supra.

90 WCC Regulation 506.3 (d), 14 F. R. 251.

participate in benefits under the respective sections of the act, the converse provision is not to be found in either the pertinent section of the act or in the regulations herein considered. It may be pointed out that parents are not presently within the eligible survivor class of section 5 (a) to (e) of the act.

The circumstance of a foster child and foster parent is similar in most of its aspects to that relationship existing between a child and a person standing in loco parentis, and is distinguishable from the status of adopted child inasmuch as the former relationship is established without resort to legal formalities.

The attitude of the courts, generally, with respect to the devolution of the estates of foster parents in favor of foster children is reflected in the following:

Whenever, in the absence of an adoption pursuant to some legislative enactment, a child, received from the natural parents into the home of foster parents and treated by the latter as a natural child, has been allowed to share in the estate left by the foster parents, it was only when a contract to legally adopt such child or to give it a share in such estate is clearly proven. * * * Simply that a child of another is received into a home, cared for, and educated until the age of 16 years, cannot well indicate that such child has further claims on those who so took it in, No doubt such a child has received much more than it has parted with."1

The Commission's regulation restricts eligible children to natural, adopted and posthumous children and, by clear implication, excludes foster children. This restriction and exclusion, controlling in the instant case, are reasonable and within the intendment of the act.92

Since foster children have not been included in the pertinent sections of the act nor in the regulations of the Commission defining children, and since it is clear from the evidence that this claimant does not qualify as an adopted child, it must be concluded that she is not entitled to participate in benefits as a survivor of Mrs. Mary Meehan Harries under section 5 (d) (3) of the act.

CONCLUSION

The regulations of the War Claims Commission defining the terms "child" preclude a foster child from participating in the benefits provided under sections 5 (a) through (e) and 6 of the War Claims Act of 1948, as amended.

Considered and approved by the Commission October 24, 1951.

91 Re Estate of Hack, 166 Minn. 35, 207 N. W. 17.

92 General Counsel Opinion No. 12.

(1) May a woman who entered into a marriage relationship with deceased civilian American internee in the Philippine Islands, in 1924, without benefit of a civil or religious ceremony, be deemed to be the legal widow and thus eligible as a claimant for detention benefits under section 5 (a) through (e) of the War Claims Act of 1948, as amended? (2) Are the surviving children of such a relationship eligible claimants for detention benefits under section 5 (a) through (e) of the act?

FACTS

The claimant, Rosalia Ferrer Davis, has presented a claim for detention benefits for herself and in behalf of her seven minor children, pursuant to section 5 (a) through (e) of the War Claims Act of 1948, as amended.93 Mrs. Davis asserts that her marriage to deceased was in the nature of a "common law relationship." The record discloses that she "began living with" Roy John Davis, an American citizen, on October 25, 1924, at Salvacion, Buenavista, Philippine Islands. This relationship was terminated by death of Roy John Davis on December 15, 1946. It is evident that the common law relationship between the claimant and the deceased was never solemnized either by a religious or civil ceremony.

The following children, all of whom survive were born to this union: Jose, December 28, 1925; Elva, July 4, 1928; Walter, July 25, 1930; Jane, April 17, 1932; Ed, September 17, 1935; David, September 23, 1937; Ray, November 7, 1938; Paul, November 21, 1940; and Edith, March 2, 1944.

The decedent is named as the father in the certificates of baptism of six of the children and in a certificate of birth of the seventh. On April 4, 1950, the mayor and the treasurer, respectively, of the municipality of Buenavista, Iloilo, Philippines, executed their affidavit to the effect that they know deceased and claimant to have lived together as husband and wife since before the year 1925, the year of the birth of the oldest child, and that they know the nine children to be the children of deceased and claimant.

83 Public Law 896, 80th Cong., July 3, 1948, 62 Stat. 1240; 50 U. S. C. App. Supp. 2001 et seq.

In the adjudication of the claim of Rosalia Ferrer Davis, her eligibility under section 5 of the act, and that of the surviving children has been questioned.

DISCUSSION

The War Claims Act of 1948, as amended, provides, inter alia, that in the event of death of persons entitled to payment of benefits by virtue of section 5 (a) to (e), payment shall be made to the widow or dependent husband if there is no child or children of the deceased, or if there be a child or children, one-half to the widow or dependent husband and the other half to the child or children of the deceased, in equal shares.

I

The first question to be disposed of is the eligibility of the claimant, Rosalia Ferrer Davis, who claims as the surviving widow of the deceased.

The act itself does not define the term "widow." However, the Commission has determined that "a widow is the surviving female spouse of a deceased prisoner of war or of a deceased civilian American citizen who was married to the deceased at the time of his death by a marriage valid under the applicable law of the place where entered into." 95 Since the claim of Rosalia Ferrer Davis is founded upon a "common law marriage" to the deceased, it is necessary to determine the validity of such marriage under the laws of the Philippine Islands. Before the Philippine Islands were ceded to the United States under the terms of treaty of April 11, 1899,9 the Philippine Islands were under the rule of Spain and subject to Spanish law. Prior to the enactment of the Civil Code of Spain in May 1889,97 which was made effective in the Philippine Islands by royal decree as of December 8, 1889, no marriage except that sanctioned by the Catholic Church had legal validity. That same code for the first time provided for recognition of civil marriages and the civil registry. However, by royal decree on December 29, 1889,98 titles 4 and 12 of Book I (arts. 42 to 107 of the Civil Code) relating to civil marriages were suspended as to the Philippine Islands.

The change of sovereignty and the consequent establishment of religious liberty made a modification of the marriage law imperative. Accordingly, on December 11, 1899, after the annexation of the Philippine Islands by the United States, the Military Governor exercising

450 U. S. C. App. 2004.

WCC Regulation 506.3 (a), 16 F. R. 644.

96 30 Stat. 1754.

97 The Civil Code of Spain with Philippine notes and reference by F. C. Fisher, 1st ed. 1918, p. 7.

98 Id.