property law. Thus, to be entitled to a child's insurance benefit, the infant plaintiffs must not only satisfy the requirements of Section 402(d)(1) and (3), but in addition must come within the purview of Section 416(h)(2)(A). In order to decide whether the infant plaintiffs have a right to inherit from the decedent under the law of New Jersey, it becomes necessary to examine the nature of the relationship between the decedent and the claimant.
If the claimant and the decedent were validly married from 1939 until the decedent's death in 1960, then the infant plaintiffs are legitimate and are entitled to inherit from the decedent in New Jersey.
As between the claimant and the decedent, no ceremonial marriage, valid or invalid, ever took place. Claimant contends, however, that as between herself and the decedent a valid common law marriage existed between December, 1939 and December, 1960. By statute in New Jersey, common law marriages commencing after December, 1939 are not valid. See N.J.S. § 37:1-10, N.J.S.A. Common law marriages entered into before that date continue to be valid. Claimant relies on this latter proposition of law with respect to her alleged marriage to the decedent.
There are two prerequisites to a valid common law marriage in New Jersey. They are: 1) Capacity of the parties to enter such a relationship; and 2) Mutual Consent of the parties to become presently man and wife - i.e., there must be an agreement by both parties to intend to enter into a contract of marriage. See Jackson v. Jackson, 94 N.J.Eq. 233, 113 A. 495 (Ch.1922). With respect to the latter of these two requirements, it has been held that cohabitation with matrimonial habit or repute is evidence of a common law marriage, Dunn v. O'Day, 18 N.J.Misc. 679, 681, 16 A.2d 195 (1940). See also Costill v. Hill, 55 N.J.Eq. 479, 480, 40 A. 32, 33 (Ch.1897). Of course, if the claimant in the instant case knew of decedent's prior incapacity to enter into a valid common law marriage, she could not in any case have had the requisite intent to contract a valid common law marriage. See Winn v. Wiggins, 47 N.J.Super. 215, 135 A.2d 673, (Super.Ct.1957).
Assuming that the claimant and the decedent had the intent necessary to enter into a common law marriage, there is also the problem of whether they had the proper capacity to effect such a relationship. The Appeals Council determined from the record that the decedent never obtained a divorce from his first wife and therefore did not have the capacity to contract a valid common law marriage. Claimant contends that this determination is not supported by substantial evidence in the record. It is further insisted that the presumptions attaching to the validity of present marriages which would be applied in controversies in the courts of New Jersey should have also been applied by the Appeals Council below. Assuming that such presumptions are applicable in a federal administrative proceeding, I am of the opinion that the Appeals Council's finding of facts are supported by substantial evidence. With respect to the alleged common law marriage between the claimant and the decedent, the following has been held in New Jersey:
1. All marriages are presumed to be valid until proven otherwise, Thompson v. Monteiro, 58 N.J.Super. 302, 156 A.2d 173 (Super.Ct.1959).
2. The presumption of validity of an earlier marriage is transferred to the second marriage so as to require clear and convincing evidence of the validity and continued existence of the first marriage if the later marriage is to be invalidated, Simmons v. Simmons, 35 N.J.Super. 575, 114 A.2d 577 (Super.Ct.1955).
3. When the validity of a marriage is attacked upon the ground that one of the parties to it had a husband or wife living at the time when it was contracted, the party asserting its invalidity must not only prove the former marriage, but also that the former husband or wife was living at the time of the second marriage. See Vreeland v. Vreeland, 78 N.J.Eq. 256, 79 A. 336 (Ch.1911).
It appears from the record that despite the initial effect the above presumptions may have had, they were rebutted by clear and convincing evidence. The following exhibits were introduced at the hearing before the Hearing Examiner:
1. Exhibit #7 is a statement by the decedent in which he states that he was ceremonially married to one Blanche Taylor in 1928 and that this marriage was never dissolved. In addition, he states that he saw his ceremonial wife in 1957, approximately eight years after the third and last infant plaintiff in the present suit was born.
2. Exhibit #6 is another statement executed by the decedent in which he states that he was never ceremonially married to the claimant and that he merely "began living with her."
It is also necessary to point out that the matters contained in these two statements were not objected to by counsel for the claimant at the hearing before the Hearing Examiner. Although these exhibits contain hearsay statements made by the decedent, they were nevertheless admissible in the proceedings below.
The conclusion is thus inescapable that the decedent and the claimant never effected a valid common law marriage.
Assuming that the above marriage was bigamous, and hence invalid, there is the further question whether New Jersey might recognize that the illegitimate infant plaintiffs are legitimate for purposes of the state intestacy laws. Claimant insists that the infant plaintiffs are legitimate for this purpose. I have concluded that this contention is without merit. There are four statutes which relate to the question of legitimacy presented here. The first is N.J.S. § 3A:4-7, N.J.S.A., which provides as follows:
§ 3A:4-7. For the purpose of descent and distribution under this chapter to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his mother, so that he and his issue shall inherit and take from his mother and from his maternal kindred, including his maternal ancestors, descendants and collaterals; and they, from him and his issue. When parents of an illegitimate child shall marry subsequent to his birth and recognize and treat him as their child, such child shall be deemed to have been made the legitimate child of both of his parents for the purpose of descent and distribution to, through and from him under this chapter.
It also should be pointed out that if the subsequent marriage of the parents referred to in the preceding section is a void ceremonial marriage, the children are nonetheless legitimate. See L. v. L., 92 N.J.Super. 118, 222 A.2d 297 (Super.Ct.1966).
N.J.S. § 9:15-1, N.J.S.A., is a general legitimation statute which provides for the legitimation "by the intermarriage of * * * natural parents," along with the requirement of recognition.
N.J.S. § 9:15-2, N.J.S.A., another legitimation statute, provides generally that children "born of a ceremonial marriage * * *" are considered legitimate notwithstanding the subsequent declaration that such marriage is void.
Finally, N.J.S. § 2A:34-20, N.J.S.A., found in the divorce and nullity statutes, provides that only a certain class of issue of void marriages are to be deemed illegitimate, that class being "where the marriage, not being a ceremonial one, is dissolved because either party had another wife or husband living at the time of a second or other marriage."
The authorities referred to above make it quite clear that children born out of wedlock either prior or subsequent to a void ceremonial marriage are deemed legitimate for purposes of the State's intestacy law. However, neither the State Legislature nor the courts of New Jersey have extended the status of legitimacy to children who are born subsequent to a void common law marriage. Moreover, in Wieczoreck v. Folsom, 142 F. Supp. 507 (D.N.J.1956), it was held that children born subsequent to an attempted common law marriage were not entitled to children's insurance benefits under the Social Security Act - i.e., the court decided that under the law of New Jersey such children were deemed illegitimate.
Claimant argues that even if the infant plaintiffs are illegitimate under the law of New Jersey they are entitled to benefits under the Social Security Act by virtue of the last sentence of 42 U.S.C. § 416(h)(2)(A), supra, which provides that:
"Applicants who according to such law [law of the state of domicile] would have the same status relative to taking intestate personal property as a child or parent shall be deemed such."