Where an illegitimate child is unconditionally surrendered by her mother to an insured individual domiciled in Massachusetts in return for his promise to adopt the child and he thereafter brings up the child as his own but fails to obtain a decree of adoption, held, under the law of Massachusetts the child may share as a child in the devolution of the insured individual's intestate personal property, and therefore, may be deemed to be the child of such individual under the Social Security Act.

Immediately following her birth in September 1944, C, an illegitimate child, was given to F and his wife by the child's mother. At that time, the mother agreed to give up all rights to the child and to unconditionally surrender her to F and his wife and they in return promised to legally adopt C. In June 1946, F and his wife filed a petition for the adoption of C. This petition contained a statement by C's mother giving her consent to the adoption, but the adoption proceedings were never completed because of the death of their lawyer. However, C has always lived with F and his wife in their home, has been called by their name, and has been fully supported by F all her life. F and his wife have always exercised full control and custody of the child and have in all ways treated her as their own. In December 1960, F attained age 65 and was awarded old-age insurance benefits effective with that month. In January 1961, F filed an application of C's behalf for child's insurance benefits based on his earnings record. All events set forth above took place in Massachusetts while F was domiciled there.

All requirements for child's insurance benefits are met if C is a child of F as defined in section 216(e) and C is his child under section 216(e) if she may be deemed his child under section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A), in pertinent part, provides that in determining whether an applicant is the child of an insured individual, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the individual was domiciled at the time such applicant files application. An applicant who, according to such law, would have the same status as a child of the insured individual for the purpose of sharing in his intestate personal property shall be deemed to be his child.

It is, therefore, necessary to determine whether, under the law of Massachusetts, C could qualify as a child for a share in the distribution of F's intestate personal property.

Where a mother unconditionally gave her illegitimate child to foster parents in return for their promise that the child would be legally adopted by them, and, although no legal adoption took place, all parties have otherwise performed their obligations under such a contract, the court of Massachusetts would recognize the right of the child to specific performance of the contract and would hold that in equity the child has the same rights of inheritance as if he had been legally adopted.

Since, therefore, C could share as a child in F's estate under applicable State law, she may be deemed to be F's, child for purposes of entitlement to child's insurance benefits.

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