(id., Title 20, § 320.1203). But those consequences obviously do not necessarily mean that C's later marriage to B was valid since the presumed decedent, H, if he reappeared, could demand return of his property (id., and see In re Millar's Estate, 51 A. 2d 745 (Pa., 1947)); and H could, if he petitioned within six months of his return and had not himself remarried, obtain a "divorce" on grounds of bigamy while "leaving the other party to remain with the second husband..." (Purdon's Pennsylvania Statutes, Annotated, Title 23, § 10). In view of the evidence of C's first husband, H, being alive as late at October 29, 1958, and the provisions of Pennsylvania law referred to, and since nothing can be found otherwise in the Pannsylvania statutes or decisions, it is held that the Court's declaration of May 20, 1949, that H was dead, does not itself justify finding C to be B's "widow" and entitled to benefits under the Act if otherwise qualified. Such a finding can be made only if more evidence is obtained that H, the first husband, actually died before November 28, 1959, or it is learned from him, if he is still alive, that he had his marriage to C effectively dissolved by divorce or annulment before she married B on November 28, 1959. SECTIONS 5(a) AND 5(1) (1) OF THE RAILROAD RETIREMENT ACT-ANNUITY-QUALIFYING CONDITION FOR WIDOW'S AN NUITY 20 CFR 237.303, 237.406 be * L-60-336 Widow who in month prior to marriage to employee was entitled or would have been entitled upon attaining age 62 to certain benefits under the Social Security Act need not have been married to employee for one year before his death in order to qualify for a widow's annuity. Under section 5(1) of the Railroad Retirement Act the "qualifications [required in addition to others for a widow's annuity] shall those set forth in section 216(c)" of the Social Security Act. The issue is whether widows G and B who were married to their respective employee-husbands for less than a year may be eligible for widows' annuities under section 5(a) of the Act based on the employment of such husbands if in the month before their marriage they were entitled or potentially entitled to certain benefits under the Social Security Act. The 1958 amendments to the Social Security Act added a condition in section 216(c) of that Act under which a "widow" need not have been married for one year to the deceased worker on whose employment she would otherwise qualify for a widow's benefits if "in the month prior to the month of her marriage to him (A) she was entitled to, or on application therefor and attainment of retirement age [age 62] in such prior month would have been entitled to, benefits under subsection (e) [as a widow] or (h) [as a parent] of section 202 * In Associate General Counsel's opinion L-58-479, explaining the effect of the 1958 Social Security Amendments on the Railroad Retirement Act, it was held that the condition referred to, since added to section 216(c) of the Social Security Act which is incorporated by reference in section 5(1) (1) of the Railroad Retirement Act, would permit a widow to qualify for a widow's annuity under the * * Railroad Retirement Act if she otherwise qualified under section 5 of the Railroad Retirement Act. Consequently, both the widow G and the widow B, having been entitled or potentially entitled to a monthly benefit under section 202 (e) of the Social Security Act in the month before their marriages to "completely insured" employees under the Railroad Retirement Act, would not be barred from widows' annuities under section 5(a) of the Railroad Retirement Act, because of their not having been married to their employee-husbands for at least a year before these husbands died. Further, the circumstance that each is, or will be later, qualified for a monthly benefit under the Social Security Act because of the earlier death of their former husbands ("fully insured" under the Social Security Act) does not preclude entitlement to the widow's annuity under the Railroad Retirement Act. For the only provision in the Railroad Retirement Act which prevents the widow of a "completely insured" employee from receiving in full both a widow's annuity under the Railroad Retirement Act and a monthly benefit under the Social Security Act is section 5(g) (2) which prohibits such double entitlement only when such entitlement would derive from the employment of the "same employee." The Social Security Act contains a like limitation in section 202 (1). In the present two cases, however, the entitlement derives from the employment of different persons so that, obviously, section 5(g) (2) of the Railroad Retirement Act (or section 202(1) of the Social Security Act) has no effect. Nor is there anything otherwise in the Railroad Retirement Act, the Social Security Act, or other legislation, which would limit or affect the entitlement resulting from the 1958 amendment to the Social Security Act, which amendment nullifies, in the cases here considered, that provision of the Social Security Act otherwise requiring termination of the widow's monthly benefit because of remarriage. (Under section 202 (e) of the Social Security Act remarriage of a widow does not terminate her widow's annuity if the individual she remarries dies within one year of the marriage without having a "fully insured" status.) In other words, the same possibility of double benefits exists here as in the case of the widow entitled to a widow's annuity under the Railroad Retirement Act on her husband's employment and also to an old-age benefit under the Social Security Act on her own employment. In reaching this conclusion, the fact has not been overlooked that the survivor benefit provisions of the Railroad Retirement Act were originally enacted in the light of then existing provisions of the Social Security Act by which any remarriage of a widow beneficiary (or other survivor beneficiary) precluded any further payment of the monthly benefit, so that under those coordinated provisions the kind of double benefits produced in the two cases here considered would not have resulted, even apart from the effect of section 5(g) (2) before its amendment in 1955 by Public Law 383, 84th Congress. But the policy against these dual benefits indicated by these earlier provisions would not, of itself, provide a sufficient basis for a different interpretation of the present provisions in view of the explicitness of the amendatory language, and their plain effect on the provisions amended. SECTION 5(a) AND SECTION 5(1) (1) (i) OF THE RAILROAD RETIREMENT ACT-RELATIONSHIP-WIDOW "LIVING WITH” HER HUSBAND AT THE TIME OF HIS DEATH-COURT ORDER FOR SUPPORT, TERMINATION OF (MINNESOTA) 20 CFR 237.305 L-60-345 Widow was not "living with" her husband at the time of his death because the court order requiring him to contribute to her support on which her claim rests was payable only pendente lite and terminated before his death. In order to qualify for a widow's annuity under section 5(a) of the Railroad Retirement Act a claimant must, inter alia, under section 5(1) (1) (i) "have been living with the employee at the time of the employee's death" and under section 5(1)(1) a “widow* * * shall be deemed to have been living with the employee if the conditions set forth in section 216(h) (2) or (3), whichever is applicable, of the Social Security Act, as in effect prior to 1957, are fulfilled." Subsection (2) of section 216(h) of the Social Security Act as in effect prior to 1957, which is applicable, provides: A wife shall be deemed to be living with her husband if they are both members of the same household, or she is receiving regular contributions from him toward her support, or he has been ordered by any court to contribute to her support; and a widow shall be deemed to have been living with her husband at the time of his death if they were both members of the same household on the date of his death, or she was receiving regular contributions from him toward her support on such date, or he had been ordered by any court to contribute to her support. The issue is whether the court order which had required the employee to contribute to the support of the claimant provides a basis on which to find that she was "living with" him at the time of his death. * * * * * The claimant A admits that she was not actually living with the employee at his death and that he was not then contributing to her support. Her claim rests on an order issued on November 1, 1924, in a divorce action initiated in Minnesota by her husband (the employee) for desertion, under which order the plaintiff was "to pay to the defendant * the sum of $35.00 each and month every until the further order of this court" and to pay "the further sum of $75.00 as suit money." According to the court clerk "no order quashing the order has been filed" and apparently the order was never formally dismissed, although the plaintiff had the main action dismissed on February 28, 1930. No later action was ever filed. Under Minnesota law (in effect at the time of the divorce action, and still in effect) the court had the "discretion" in an action for divorce to "require the husband to pay any sum necessary to enable the wife to carry on or defend the action, or for her support during its pendency." Minnesota Statutes Annotated (1947), § 518.14, and see Wagner v. Wagner, 26 N.W. 450 (Minn. 1886). Obviously, the order in the present case was issued under that authority. Cf. In re Fanning, 41 N.W. 1076 (Minn. 1889), where the court held that an order which required payment of a weekly sum to the wife in an action by a husband for a divorce, "until the determination of the action or further order of the court" fell "with the entry of judgment of dismissal" and was "no longer in force." Accordingly, it is held that the court order for support in the present case was not effective after the dismissal of the divorce action in 1930, and so was not in effect at the employee's death; and the claimant cannot, by reason of the support order, be found to have been "living with" the employee at his death. SECTION 5(1) (1) OF THE RAILROAD RETIREMENT ACT-WIDOW'S RELATIONSHIP-VALIDITY OF MARRIAGE 20 CFR 237.303, 237.406 L-60-353 A valid marriage was effected through the operation of a Massachusetts statute where the claimant and employee, believing that they had a right to marry outside Massachusetts, attempted a ceremonial marriage elsewhere before the employee's divorce in Massachusetts had become absolute but after a decree nisi had been granted and while for that reason he did not have the capacity to marry. Section 5(1)(1) of the Railroad Retirement Act provides in pertinent part as follows: * In determining for purposes of this section and subsection (f) of section 2 whether an applicant is the wife, husband, widow, widower, child, or parent of an employee as claimed, the rules set forth in section 216(h) (1) of the Social Security Act, as in effect prior to 1957 shall be applied. Section 216(h) (1) of the Social Security Act as in effect before 1957 provides: In determining whether an applicant is the wife, husband, widow, widower, child, or parent of a fully insured or currently insured individual for purposes of this title, 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 such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such. The issue is whether a ceremonial marriage while one of the parties was restricted from marrying effected a valid marriage relationship under the applicable law for purposes of a widow's annuity. The employee, H, died July 6, 1958, domiciled in Massachusetts; therefore, the law of that State must be applied. B stated that she had been born June 10, 1900; that the employee had been married twice: to Alice, from whom he was divorced in May, 1927; and to her, on June 12, 1927, at Putnam, Connecticut; and that she and the employee were living together when he died. She submitted a certified copy of the decree of divorce dissolving the employee's first marriage, which provided that the plaintiff, H, was granted a decree nisi on May 27, 1927, which became absolute on November 27, 1927. She also submitted evidence showing the ceremonial marriage of herself and the employee on June 12, 1927, at Putnam, Connecticut. The claimant B informed the Board that both she and the employee were aware of the six months' restriction against remarriage, but it was their understanding that the restriction applied only to remarriage in Massachu setts; that they went to Putnam, Connecticut to be married; that they understood that they could not live together as husband and wife in Massachusetts until the six month period had elapsed, so they lived at her father's house in Providence, Rhode Island, and returned to Massachusetts after the six month period had elapsed; that from then on they lived only in Massachusetts; that as far as she know, the employee's first wife remarried, and that she has no idea whether or not she is living or dead. The claimant, B, stated that she and the employee began living together in Providence, Rhode Island on June 12, 1927; that they lived in Providence until November 25, 1927, when they moved to Massachusetts, where they lived until the employee's death; that they believed that they were legally married because they were ceremonially married in a state other than Massachusetts and understood this to be legal; that they lived together as husband and wife, held themselves out as husband and wife; and that they were the parents of three children, now adults. The claimant told a Board representative that there had never been any question in her or the employee's mind regarding the legality of their marriage; that she would rather drop everything than have her children learn of the situation; and that the only person she could have provide evidence was her family attorney. The attorney stated that he had known the employee since 1918 and B since 1925; that the employee and B were generally known as husband and wife; that he considered them to be husband and wife, and that they maintained a home and lived together in Massachusetts from 1927 until the employee's death. Massachusetts' law (annotated Laws of Massachusetts, Volume 6-A, Chapter 208, § 21) provides that decrees of divorce shall in the first instance be decrees nisi, and shall become absolute after the expiration of six months from the decree thereof, unless the court within said period, otherwise orders. A common-law marriage will not be recognized in Massachusetts. Associate General Counsel's opinion L-51-65. However, Section 6, Chapter 207, Volume 6-A of the Annotated Laws of Massachusetts provides: If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed, by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents. B stated that she and the employee believed that they had been validly married on June 12, 1927, in Putnam, Connecticut; that they believed that, although they could not enter into a valid marriage in Massachusetts for six months after the employee's divorce from his first wife had been granted, they could be validly married in another state, and that after the six month period they would be validly married in Massachusetts. The employee |