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December 6, 1960

Rhoda J. CHASE, Charles W. Chase, Elinor R. Chase Jones, Georgia E. Chase Snell and Lawson W. Chase, Defendants

The opinion of the court was delivered by: WORTENDYKE

In this interpleader action, of which jurisdiction arises under 28 U.S.C. § 1335 by reason fo diversity of citizenship between certain of the defendant claimants, and the involvement of more than $ 500.00, the Court is asked to determine rights to the proceeds of a life insurance policy, payable by the terms thereof to the widow, if any, or, in the absence thereof, to the children of the deceased insured.

Plaintiff insurer was authorized, by order of the Court, to deposit the proceeds of the policy which matured on the death of the insured, in the registry of the Court, after deduction therefrom of a counsel fee allowed to the attorneys for the plaintiff.

 In lieu of trial, the claimants have submitted the case to the Court for decision upon a stipulation of facts, together with annexed exhibits and briefs upon the legal questions posed.

 The policy involved was Group Policy No. 17,000-G, issued pursuant to the Federal Employees' Group Life Insurance Act of 1954, 5 U.S.C.A. § 2091 et seq., to Lawson W. Chase, who died July 9, 1957 while the policy was in force. No beneficiary was named in the policy but the proceeds thereof, $ 5,000, were made payable in accordance with the following beneficiary clause:

 At the pretrial conference, claimants conceded that the insured married defendant Rhoda J. Chase ceremonially in the District of Columbia on October 29, 1941, and that the couple lived together as, and held themselves out to be, man and wife, in the District of Columbia as well as in the State of New Jersey. Both of the parties to that marriage represented to the licensing authority of the District that they were residents of the State of New Jersey. Indeed, Rhoda still resides in New Jersey, as do all of the other defendants except Lawson W. Chase, who resides in and is a citizen of the State of California. The defendants other than Rhoda are concededly children of the insured by a former wife, Georgia E. Chase, from whom the insured was divorced by a final decree of the former Court of Chancery of New Jersey on February 19, 1948. The question which the Court is called upon to answer is whether the defendant Rhoda J. Chase was the widow of the insured at the time of his death on July 9, 1957.

 At no time after the entry of the divorce decree in the Court of Chancery of New Jersey, which dissolved the marriage between the insured and his former wife, Georgia, did the insured and Rhoda participate in any formal ceremonial marriage within the State of New Jersey or elsewhere. They continued to live together and to hold each other out as mutual spouses in the State of New Jersey and during frequent visits to the District of Columbia. Rhoda contends that when she participated in the ceremonial marriage with the insured in the District of Columbia in 1941, she honestly believed that no impediment to such a marriage existed, and that the insured had previously been divorced from his former wife. In support of this contention there is attached, as an exhibit to the stipulation of facts a copy of application of Georgia Ethel Chase, made in the State of New York on March 2, 1931, for a license to marry one Robert Ralph Dill, in which she declared under oath that no legal impediment existed to her right to enter into the marriage state; that her former husband was dead; and that a divorce had been granted in 1928. Whether the representations made by Georgia in the New York State marriage license application were known to the insured, or to Rhoda, at the time of their purported marriage does not appear from the stipulation of facts. From the copy of the New Jersey divorce decree of February 19, 1948, annexed to the stipulation of facts, I find that the insured was aware, at least as of that date, that he had theretofore been bound in matrimony to Georgia, and therefore had not been at liberty to marry another. In her sworn answers to interrogatories propounded by her co-defendants, Rhoda states that at the time of her marriage to the insured, on October 29, 1941, in the District of Columbia, she knew that the insured had been previously married, that he had four children by his previous marriage, but that she was given to understand, from an application by his previous wife to remarry, and from a receipt from his attorney, that the previous marriage had been terminated. Rhoda further swears that she was unaware of the insured's New Jersey divorce decree from Georgia Chase of February 19, 1948, when she was residing with the insured in New Jersey. Rhoda's contention that she is the lawful widow of the deceased insured is grounded upon her claimed ceremonial marriage in the District of Columbia on October 29, 1941, followed by her cohabitation with him, and holding him out as her husband, continuously thereafter, both in the District of Columbia and in the State of New Jersey, with the full intention and belief that they were legally man and wife. She further sets forth that she paid, for the account of the insured in connection with his last illness and funeral, medical, hospital, ambulance and funeral and burial expenses totalling $ 1,579.80, for which she has not been reimbursed.

 Similarly to the situation in Oliver v. Oliver, 1950, 87 U.S.App.D.C. 334, 185 F.2d 429, when our insured attempted to marry Rhoda in the District of Columbia, his prior marriage still remained undissolved. Therefore, the then attempted second marriage was in violation of the law of the District of Columbia and therefore void. See 30 D.C.Code (1951) § 101. Such invalidity is because of inconsistency with the public policy expressed in the statute law. Oliver v. Oliver, supra. If we assume that Rhoda was not chargeable with actual or imputed knowledge of the existence of the impediment to the legal marriage to the insured, estoppel cannot be availed of to defeat the public policy of the District. If the ceremonial marriage held in the District of Columbia was invalid, can the parties avail themselves of a common law marriage to circumvent the invalidity of a ceremonial marriage? Although no longer recognized as legal in New Jersey (see N.J.S.A. 37:1-10), a common law marriage is recognized as legal in the District of Columbia and "The removal of an impediment while parties continue to live together as husband and wife gives rise to a common-law marriage." McVicker v. McVicker, 1942, 76 U.S.App.D.C. 208, 130 F.2d 837. I am satisfied from the evidence before me that the insured and Rhoda lived together and held themselves out as husband and wife in the District of Columbia and in the State of New Jersey from the date of the ceremonial marriage in the District in 1941 to the date of the insured's death, a matter of approximately 16 years. Throughout this period, however, the two individuals were domiciled in New Jersey, although they frequently visited friends in the District of Columbia for periods of a few days at a time.

 If the marriage ceremony in which the insured and Rhoda participated in the District of Columbia, in 1941, was ineffective to create a binding marital contract, by reason of the existence of an undissolved marriage then existing between the insured and his former wife, then surely no matrimonial status could arise between Lawson and Rhoda prior to the dissolution of Lawson's prior marriage by the 1948 divorce. Did a common law marital status arise upon the entry of the divorce decree in New Jersey, and if so, was it lawful in the District or in New Jersey, or in both? It could not arise under the New Jersey law because of the provisions of N.J.S.A. 37:1-10. Having in mind the continued residence of both of the alleged spouses in New Jersey, could they, by jointly holding themselves out as man and wife upon the occasions of their visits to the District of Columbia, create a common law marriage status which would be recognized as valid in New Jersey, despite the provisions of the statute of that State?

 Unless the insured's 1948 divorce decree effected a commencement of a common law marriage to Rhoda, valid in the District of Columbia, where they had previously entered into a ceremonial marriage, his status as her spouse could not be so treated in New Jersey. New Jersey has legislatively expressed its public policy against common law marriages. See N.J.S.A. 37:1-10. When the principals went to the District of Columbia to be married, it was not possible for them to achieve that status legally. Upon their return to New Jersey, the State of their domicile, they therefore had no such status to bring with them. Intermittent visitations to the District of Columbia after the entry of the New Jersey divorce decree in 1948 could not suffice to alter the domiciliary status. As Judge Meaney of this Court said in Brown v. United States, in 1947, 72 F.Supp. 153, at page 155, affirmed 3 Cir., 1947, 164 F.2d 490, certiorari denied 1948, 333 U.S. 873, 68 S. Ct. 902, 92 L. Ed. 1149: 'The contention of the plaintiff would have the removal of the impediment to a legal marriage constitute a validation of the originally invalid ceremonial marriage, which is nowhere provided for in the Statute (N.J.S.A. 37:1-10). It could by no means be said to revive and legitimize a null and void marriage under any circumstances, for a nullity being something which never existed cannot be 'revived'.' In Winn v. Wiggins, App.Div.1957, 47 N.J.Super. 215, 135 A.2d 673, an alleged wife sought a declaratory judgment establishing the validity of a common law marriage claimed to have taken place in Florida or Georgia, where such marriages were recognized as legal. The trial court was affirmed in dismissing the complaint because it appeared that plaintiff had entered into the alleged common law marriage in one or the other or both of the States which recognized such marriages, with knowledge that her alleged husband had participated in a prior ceremonial marriage, presumably valid, with another woman, and the plaintiff failed to request a ceremonial marriage after she had learned of the death of the previous wife. The principals in that relationship lived together as man and wife in Jersey City, New Jersey, from 1941 until the death of the man, and posed as husband and wife after the year of the alleged common law marriage. After having lived together under these circumstances for some time, they went south with the intention of participating in a ceremonial marriage, but, instead, attempted to create a common law marriage while they were in the States of Georgia and Florida. Not only did the Court find the evidence insufficient to show the entry into a common law marital relationship in either of the southern states, but it concluded that the plaintiff's admitted knowledge of the existence of the prior spouse and her failure to request a ceremonial marriage after she learned of the latter's death, 'would properly call for the invocation of the doctrine of unclean hands, in itself fatal to her demand for affirmative relief by way of an action for declaratory judgment.' The opinion of Judge Goldmann in Winn, supra, 47 N.J.Super. at page 224, 135 A.2d at page 677, concludes as follows:

 'Although we are of the opinion that the strong public policy evinced by the enactment of the 1939 statute, N.J.S.A. 37:1-10, is best effectuated by declaring that persons domiciled in New Jersey cannot leave this State, enter into a common-law marriage in a state where such marriages are allowed, and then return home and ask our courts to recognize that marriage, we do not find it necessary to decide the point in light of our decision on the facts.'

 (The Appellate Division found the trial judge warranted in disbelieving plaintiff's testimony as to how the alleged common law marriage took place.) It is my view that the public policy of New Jersey as expressed in the statute precludes recognition of any common law marital relationship which may have been acquired through the cohabitation and holding out upon the occasions of the parties' visits to the District of Columbia while retaining their respective domiciles in New Jersey.

 In Tegenborg v. Tegenborg, App.Div.1953, 26 N.J.Super. 467, 98 A.2d 105, plaintiff wife sued her husband for nonsupport of herself and of her child, allegedly by him. Defendant husband claimed that their marriage was void because the woman had previously married another from whom she thereafter was separated. During the period of that separation, plaintiff and defendant commenced living together in Florida, as husband and wife, while her previous husband still lived, and she remained undivorced from him. After this cohabitation had commenced, the parties to the suit entered into a ceremonial marriage in Florida, concededly entered into in good faith by the woman. After this ceremonial marriage, her former husband obtained a divorce decree. The parties to the cited case continued to live together as husband and wife in Florida, after which they moved to New Jersey. It was during their residence, as husband and wife, in the latter jurisdiction that she left him because of cruelty and non-support. The parties were held to be legally husband and wife. The opinion of the Appellate Division makes no reference to the New Jersey statute.

 In Dacunzo v. Edgye, 1955, 19 N.J. 443, 117 A.2d 508, 515, however, a husband sued for annulment upon discovery that the woman had misrepresented to the license clerk that she was single while in fact she had a husband living, the Supreme Court distinguished Tegenborg because, as was stated by the Appellate Division (1955, 33 N.J.Super. 504, at page 513, 111 A.2d 88, at page 93): 'Since the Tegenborgs were legally husband and wife in Florida, they occupied the same status here. Judge Francis emphasized that the Court in Tegenborg had no intention of indicating what effect the 1939 statute would have had if the entire matter had been localized in New Jersey.' Dacunzo further pointed out that in Danes v. Smith, App.Div.1954, 30 N.J.Super. 292, 104 A.2d 455, 458, 'the parties complied with the formal requisites of license and ceremony in good faith, unconscious of an obstacle in the path of a valid marriage, and then continued to live together as man and wife after the removal of the bar.' Dacunzo, however, reasoned that the ceremonial marriage was bigamous and that the woman 'by her wilful deceit in failing to disclose her prior marriage and divorce perpetrated a fraud upon ...

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