The opinion of the court was delivered by: MEANEY
The plaintiff, Rachael Brown, and the decedent, William C. Brown, were married on May 16, 1943, in the City of Newark, County of Essex, State of New Jersey. At the time of the marriage, the decedent, though he swore in his application for a marriage license that he was single, was as a matter of fact still married to one Fanny Brown to whom he had been joined in lawful wedlock some time before.
Fanny Brown had instituted proceedings for divorce and on April 5, 1943, had secured a decree nisi in the New Jersey Court of Chancery, which interlocutory decree became final on July 6, 1943.
After May 16, 1943, the plaintiff and the deceased lived together as man and wife until his entry into the military service of the United States. While in the said service Brown made application for a policy of life insurance under the provisions of the National Service Life Insurance Act, 38 U.S.C.A. § 801 et seq. A policy of insurance was issued and became effective on December 30, 1943, in the face amount of $ 10,000. The decedent designated the plaintiff, Rachael Brown, as principal beneficiary of such policy naming her as his wife, and naming the co-defendant, Nellie Brown, his mother, as contingent beneficiary.
William Brown, for whom the insurance was issued, died on November 19, 1944, at Camp Kilmer while a member of the Armed Forces of the United States and while the provisions of his National Insurance Policy were still in force.
On December 30, 1944, Rachael Brown filed her claim with the Veterans' Administration, the appropriate governmental Agency. On August 19, 1946, this claim was rejected by the Veterans' Administration, on the ground that the claimant was not the lawful widow of the insured.
The plaintiff, joining the United States of America and Nellie Brown, the contingent beneficiary mentioned in the policy in question, as defendants, asks for a declaratory judgment that she is the widow of the deceased veteran, William C. Brown, and as such entitled to the proceeds of the said policy.
Jurisdiction for the trial of the issues involved is vested in this court by 38 U.S.C.A. § 817.
The status of the plaintiff is to be determined in this action by reference to the relevant statutes of New Jersey regarding the marriage status, since the persons involved were, all of them, resident in New Jersey and subject to its laws and the operations of its courts.
Under the facts as stipulated in the present case, the decedent, at the time of his marriage, was still married to Fanny Brown, since the decree nisi secured by her did not actually come absolute until two months after a ceremony of marriage was performed between him and the plaintiff.
The claim asserted by counsel for the plaintiff is that since the second marriage was entered into in good faith, and the parties thereto lived together as man and wife after the final decree of divorce between Fanny and William C. Brown was granted, a common law marriage relationship was created which was not within the contemplation of the New Jersey Statute, N.J.R.S. 37:1-10, N.J.S.A.
Such statute as it affects the situation under consideration reads as follows:
'Nothing in this chapter shall be deemed or taken to render any common law or other marriage, otherwise lawful, contracted before December first, nineteen hundred and thirty-nine, invalid by reason of the failure to take out a license as herein provided. But no marriage contracted on and after December first, nineteen hundred and thirty-nine, shall be valid unless the contracting parties shall have obtained a marriage license as required by section 37:1-2 of this Title, and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized by section 37:1-13 of this Title to solemnize marriages; and failure in any case to comply with both prerequisites aforesaid, which shall always be construed as mandatory and not merely directory, shall render the purported marriage absolutely void.'
Plaintiff contends that a strict construction of this statute, which is in derogation of the common law, would exclude from its operation all cases where a marriage license is secured by the contracting parties and the issuance of such license is followed by a solemnization of the marriage by any party authorized to perform marriages. In the instant case, if this contention be valid, a marriage relationship would be created immediately ...