92 F. Supp. 75 | W.D. Pa. | 1950
The present action was instituted by plaintiff against the United States under
The complaint alleges that Bernard Lynn Morton (hereafter referred to as the veteran) married one Ethel Skoog Morton on or about October 6, 1928; that she commenced “a divorce action against the Veteran on October 18, 1934, but this proceeding was never carried through”. Plaintiff further alleges “that she and the Veteran began living together as man and wife March 17, 1936 and lived together continuously in this relationship until the Veteran entered the Service November 9, 1942. During this period she was acknowledged by him as his wife and both parties believed that the former marriage to Ethel Skoog Morton had been dissolved by divorce.”
The United States moves to dismiss for failure to state a claim upon which relief could be granted.
As to the various classes of beneficiaries to whom such insurance shall be payable upon the death of the insured, Section 602(g) of the National Service Life Insurance Act of 1940, as amended, 38 U.S.C. 802(g), specifically and unequivocally states that “The insurance shall be payable only to a widow, widower, child (including a stepchild or an illegitimate child if designated as beneficiary by the insured), 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, and shall, subject to regulations, at all times have the right to change the beneficiary or beneficiaries of such insurance without the consent of such beneficiary or beneficiaries but only within the classes herein provided: * * *
The veteran had entered into a formal marriage with one Ethel Skoog Morton, which marriage had not been dissolved. He was therefore legally incompetent to marry. The Supreme Court of Pennsylvania has specifically ruled that cohabitation and1 reputation of marriage are insufficient to create a lawful marriage where either party is legally incompetent to marry, and that such a marriage is void.
So ordered.
. The veteran died on or about May 11, 1945, consequently the proviso added by the Act of August 1, 1946, does not apply.
. Schurink v. United States, 5 Cir., 177 F. 2d 809.
. Castor v. United States, 8 Cir., 174 F.2d 481; Branch v. United States, D.C.W.D. Okl., 83 F.Supp. 641; and cf. United States v. Snyder, 85 U.S.App.D.C. 198, 177 F.2d 44.
. Pierce v. Pierce, Appellant, 1946, 355 Pa. 175, 49 A.2d 346.
. Schurink v. United States, supra; Branch v. United States, supra; United States v. Snyder, supra; Jones v. United States, D.C.Mass., 61 F.Supp. 406; Castor v. United States, supra; Gehm v. United States, D.C.S.D.N.Y., 83 F. Supp. 1003; cf. Sherman v. Federal Security Agency, 3 Cir., 166 F.2d 451.