Eileen Dowell v. John W. Gardner, Secretary of Health, Education and Welfare

PHILLIPS, Circuit Judge.

John B. Dowell deserted his third wife and four small children in 1957. Another child was bom to the wife six months later, and one of the children has died in the interim. The issue is whether the four children now surviving are entitled to Social Security survivors’ benefits on the earnings of their father upon the theory that he is presumed to be dead after an absence of more than seven years.

The Social Security regulations contain the following provision concerning presumption of death, 20 C.F.R. § 404.705:

“Whenever it is necessary to determine the death of an…