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HAWKEY v. UNITED STATES

December 4, 1952

HAWKEY
v.
UNITED STATES ET AL.



The opinion of the court was delivered by: Platt, District Judge.

Anna Hawkey, mother of Elsworth Jenkins, a deceased veteran, filed suit against the United States of America to obtain the undispersed proceeds of two $5,000 National Service Life Insurance certificates. Eleven half brothers and sisters, Bert Jenkins, putative father, and Bert Jenkins's daughter Pauline Cornell were made parties defendant. Answers were filed by the United States of America, the half brothers and sisters who were minors by a guardian ad litem, some of the other half brothers and sisters, Bert Jenkins, and Pauline Cornell. The latter two defendants filed counterclaims. Pauline Cornell claimed the proceeds (1) by being named beneficiary under one policy; (2) by being a half sister of the deceased; and (3) by standing in loco parentis to the insured veteran. If Pauline Cornell was not entitled to the proceeds, Bert Jenkins claimed them (1) as the father of the insured; (2) as the contingent beneficiary of one policy; and (3) by virtue of having stood in loco parentis to the deceased.

The Veterans' Administration denied plaintiff's claim prior to this suit. The court finds that it has jurisdiction of the subject matter,*fn1 and of all the parties. Personal service was had upon the minors and all other defendants who did not file answers herein. The cause was submitted to the court and evidence was heard.

The undisputed facts disclose that Elsworth Jenkins died while in the service of his country on September 28, 1943. He had in full force and effect at the time of his death the two $5,000 certificates of National Service Life Insurance. One policy designated Pauline Cornell as first beneficiary and Bert Jenkins as contingent beneficiary. The second policy named Harriet Simmons as beneficiary. Elsworth Jenkins died leaving him surviving neither widow nor child. His maternal grandmother Harriet Simmons, his natural mother Anna Hawkey, his stepfather Lewis Hawkey, eleven half brothers and sisters born of Anna Hawkey, his reputed father Bert Jenkins, and Bert Jenkins' daughter from a later marriage Pauline Cornell all survived him. The youngest of the half brothers and sisters born to his mother as a result of her marriage to Lewis Hawkey on March 28, 1920 was born in 1939 and the oldest in 1920. Anna Hawkey is now 53 years of age. Elsworth Jenkins was born October 16, 1918 or 1919. The putative father, Bert Jenkins, never married his mother Anna Hawkey. The Veterans' Administration made payments on the two policies to Harriet Simmons on the basis that she stood in loco parentis to the veteran for not less than one year prior to entry of the veteran into active service. Harriet Simmons died December 10, 1944 at the age of 71 years. A few payments were made by the Veterans' Administration to his half brothers and sisters born of Anna Hawkey after the death of Harriet Simmons. The plaintiff Anna Hawkey has expressly waived all claim to payments heretofore made on the two policies by the Veterans' Administration.

The court finds from a preponderance of the evidence that the parental relationship of Anna Hawkey as a mother continued until the insured veteran's death. The court further finds that there was no estrangement, no abandonment or lack of parental feeling between Elsworth Jenkins, the insured, and his mother Anna Hawkey prior to his death. Although it is of no significance to the decision in this case, the court finds from the evidence that Anna Hawkey stood in loco parentis to the deceased veteran for more than one year prior to the entry of the veteran into active service. The evidence clearly shows that Elsworth Jenkins lived with his mother and she cared for him until she was married to Lewis Hawkey. After her marriage, Elsworth remained continuously with his mother and stepfather until he was 14 years of age when he quit school and went to work. The only difference between Elsworth and his mother occurred when he wanted to quit school and she wanted him to continue. Mr. and Mrs. Hawkey lived in small homes of from three to five rooms. Elsworth, as well as some of the other children, spent some time with his maternal grandmother Harriet Simmons in her home which was close by. Harriet Simmons owned her own home, but she was in meager financial circumstances, and received an old-age pension from the State of Illinois the last few years of her life. Anna Hawkey as the mother of 12 children was a good parent to all her children and reared them all excellently under her economic conditions. Lewis Hawkey was a hard working laborer. He testified in behalf of Mrs. Hawkey and makes no claim herein. It is remarkable that the family was raised so well.

The court finds from the evidence that neither Pauline Cornell nor Bert Jenkins ever stood in loco parentis to Elsworth Jenkins. Pauline Cornell was friendly, generous, and kind to Elsworth.*fn2 In her behalf four letters written by Elsworth to her while in the service were offered in evidence. Objection was made to their admittance. These letters are purely hearsay and were not admissible in evidence. However, the court has examined the contents of these letters and finds nothing therein that would aid Pauline Cornell in establishing the relationship in loco parentis and no credible statement that could affect the relationship between Elsworth and his mother or his grandmother Harriet Simmons. They did show an affection toward Mrs. Cornell. In Niewiadomski v. United States, 6 Cir., 159 F.2d 683, at page 686, in loco parentis is defined as follows:

    "The term in loco parentis,' according to its
  generally accepted common law meaning, refers to a
  person who has put himself in the situation of a
  lawful parent by assuming the obligations incident
  to the parental relation without going through the
  formalities necessary to legal adoption. It
  embodies the two ideas of assuming the parental
  status and discharging the parental duties."*fn3

There never was a parental relationship existing between Elsworth Jenkins and Pauline Cornell. Bert Jenkins by his own admission never acted as a father toward Elsworth. Neither of them could possibly qualify under the evidence as having stood in loco parentis to Elsworth.

The certificates of insurance were issued pursuant to the National Service Life Insurance Act of 1940, amendments thereto, and regulations thereunder.*fn4 The pertinent sections of the National Service Life Insurance Act of 1940 in force prior to the amendment of 1946 provide in part as follows:

    Sec. 602(g). "The insurance shall be payable
  only to a widow, widower, child * * *, parent,
  brother or sister of the insured. The insured
  shall have the right to designate the beneficiary
  or beneficiaries of the insurance, but only within
  the classes herein provided, * *." (Emphasis
  supplied.) 38 U.S.C.A. § 802(g).
    Sec. 601(f). "The terms `parent', `father', and
  `mother' include a father, mother, * * * persons
  who have stood in loco parentis to a member of the
  military or naval forces at any time prior to
  entry into active service for a period of not less
  than one year." 38 U.S.C.A. § 801(f).
    Sec. 602(i). "* * * The right of any beneficiary
  to payment of any installments shall be
  conditioned upon his or her being alive to receive
  such payments. No person shall have a vested right
  to any installment or installments of any such
  insurance and any installments not paid to a
  beneficiary during such beneficiary's lifetime
  shall be paid to the beneficiary or beneficiaries
  within the permitted class next entitled to
  priority, as provided in subsection (h)." 38
  U.S.C.A. § 802(i).
    Sec. 602(h). "Such insurance shall be payable in
  the following manner:

"(3) * * *

    "(C) if no widow, widower, or child, to the
  parent or parents of the insured who last bore
  that ...

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