
    CONCETTA F. STAMER v. THE UNITED STATES GEORGE F. STAMER and MRS. CATHERINE STAMER, THIRD PARTY DEFENDANTS
    [No. 454-56.
    Decided January 20, 1960.
    Defendant’s and third party defendants’ motions for reconsideration overruled May 4, 1960]
    
      
      Mr. Herbert Rogers for the plaintiff.
    
      Miss Frances L. Nv/rm with, whom was Mr. Assistant Attorney General George Ooch/ran Doub for the defendant.
    
      Mr. David W. Kelly for the third-party defendants.
   Barksdale, District Judge,

sitting by assignment, delivered the opinion of the court:

Plaintiff, Concetta Frances Stamer, a citizen and resident of Massachusetts, has instituted this action seeking to recover of defendant, the United States, the death gratuity and arrears of pay and allowances of a deceased soldier, Francis Harold Stamer, aggregating, together with a refund of Government insurance deductions later determined to be due, the sum of $10,206.82, upon her allegation that she was the lawful widow of the deceased soldier at the time of his death. The defendant, the United States, having paid the sum of $10,206.82 to George F. Stamer and Catherine Stamer, parents of the deceased soldier, prior to the institution of this action, denies any liability to plaintiff, but asserts that, if this court should hold it liable to plaintiff, it should have judgment against George F. and Catherine Stamer, third-party defendants, to whom it has made payments of the sums here in suit.

Formal findings of fact appear later herein, but in order to. make our discussion intelligible, the facts may be somewhat, briefly stated as follows:

The deceased soldier, Francis Harold Stamer, was born, in New York, and, when twenty-four years of age, enlisted, there in the regular United States Army on May 3, 1939.. He was then unmarried and gave as his address the New York home of his parents. With the exception of occasional5 brief periods between enlistments, Stamer continued to serve* in the regular United States Army until his death. During a brief period between enlistments, on April 11,1946, Stamer-married in California one Dorothy Mohr, who resided at 14630 Chatsworth Drive, San Fernando, California. On June 29,1946, Stamer reenlisted in the regular army, giving-his wife’s Chatsworth Drive residence as his address in hisi enlistment papers and named her as his beneficiary. However, he named his mother as his nearest relative and the-person to be notified in case of emergency. After this enlistment, plaintiff never again lived with Ms wife, but continued to name her in Ms enlistment papers, and gave her address^ as his own until his second marriage on December 29, 1949.

On December 22, 1949, Stamer, who had been serving in* the regular Army at Fort Devens, Mass., reenlisted for an>. indefinite period, again giving Ms wife’s address in California as his own. Several months prior to this reenlistment,,. Stamer had made the acquaintance of plaintiff, a native and" life-long resident of Massachusetts, then living at Arlington, Mass. At that time, Stamer was thirty-four years old! and plaintiff was thirty-one. She had been previously married, had one child, a daughter Elaine, and had been divorced" since 1942. The court had awarded her the custody of' Elaine with visitation rights to the cMld’s father. Stamer-fell in love with plaintiff, they decided to be married and', entered into what purported to be a marriage, with due legal ceremony, in New HampsMre, on December 29, 1949. As.*, appears from the marriage certificate, Stamer at that time-gave Ms address as Ayer, Mass., the nearest town to Fort Devens, where he was serving. Stamer did not tell plaintiff" that he was already married, and in fact, she was completely - without knowledge of Stamer’s former marriage, and en~ tered into the marriage in good faith. The night after the marriage ceremony, Stamer telephoned his mother and sister in New York, telling them of his marriage to plaintiff, which caused them concern, since they knew, as he did, of the existence of his previous marriage. As a result of this conversation, plaintiff learned of Stamer’s previous marriage. However, she continued to live with Stamer as his wife, first at a trailer court, and then in an apartment at Ayer, Mass., until his departure under orders for service in Korea on August 2,1950.

In February 1950, Stamer’s mother and sister came to Boston for a visit to Stamer and plaintiff, and during the visit there were discussions among the four 'as to his domestic situation. In April, Stamer and plaintiff visited his parents in New York and again discussed the marital situation. As a result of these discussions, Stamer’s parents made a loan to their son and plaintiff of $250.00 (since repaid) to cover the cost of procuring a divorce or annulment from plaintiff’s first wife, Dorothy Mohr. Stamer engaged a Boston lawyer, who referred the matter to a California lawyer, his activities resulting in the entry of a decree of annulment of the first marriage in a California court on August 21, 1950, on the ground of fraud on the part of Stamer. The decree, in part, is as follows:

It is hereby ordered, adjudged and decreed that the marriage between plaintiff and defendant is annulled, and is of no force and effect whatsoever; and further that plaintiff, Dorothy Stamer, has restored to her, her maiden name of Dorothy Mohr.

Prior to Stamer’s departure for duty in Korea, arrangements had been made for plaintiff to close their home in Ayer, Mass., and go to New York to live with his parents during his absence. Within a week after Stamer’s departure, plaintiff did go to live with his parents in New York, taking most of her household effects with her. She returned to Ayer later in the month of August, to secure the consent of her first husband, or a court order, permitting her to take her daughter, Elaine, to New York with her, to pick up other personal effects, and to have all the trunks, kitchen material, linen, knives, forks, etc., taken to the home of her mother in Arlington, Mass. She returned to New York about August 27,1950, with Elaine, lived with Stamer’s family there until school started in September, when she moved into rented rooms at her own expense, convenient to Elaine’s school. Stamer was reported missing in action on November 2,1950, and within several weeks thereafter she returned with Elaine to live with her mother in Arlington, Mass., where she has continued to live until the present time.

On July 31, 1950, Stamer procured National Service Life Insurance in the sum of $10,000.00, naming plaintiff as beneficiary, and gave as his address his parents’ home in New York. This, of course, was only two days before his departure for duty in Korea. After his departure, Stamer, on August 31, 1950, authorized a Class E allotment to plaintiff in the amount of $200.00, raised in September to $240.00, per month, giving his parents’ New York address as plaintiff’s address. Of course, he knew that arrangements had been made for plaintiff to live with his parents in New York during his absence.

Stamer wrote plaintiff a number of letters after his departure, the last letter being dated October 29, 1950, some three or four days before he was reported missing in action. These letters are most affectionate, and indicate clearly his intention to return to plaintiff, to continue to live with her as his wife, and to make a home for her daughter Elaine, of whom he always spoke most affectionately. In his letter of August 25, 1950, from Pusan, Korea, he expressed pleasure that she had been working around the house, meaning the house in Ayer, Mass., and regret that he had not been financially able to buy it. He also expressed the hope that they might have her daughter Elaine permanently with them. In no letter is there the slightest indication that he contemplated their living with his parents or abandoning Massachusetts as their home. After learning that Stamer had been reported missing in action in Korea on November 2, 1950, by letter dated December 12, 1950, plaintiff notified the Department of the Army that she was moving her residence from New York back to Massachusetts, and in fact had already returned to her mother’s home in Massachusetts.

On April 17,1951, plaintiff, through her attorney, asserted to the Army her contention that she was the lawful wife of Stamer. The Department of the Army, on May 9, 1951, requested her to obtain a declaratory judgment to establish her marital rights, which she did not do. However, through her attorney and Representative in Congress, she repeatedly notified the Army of her claim to be the widow of Stamer. On May 23, 1951, Stamer’s parents, through their attorney, notified the Army of their claim to all moneys due the soldier. On December 31, 1953, pursuant to the authority of Public Law 490, 77th Congress, the Adjutant General of the Army made a “Finding of Death of Missing Person”, reciting that infantry Master Sergeant Francis H. Stamer was dead, and further that “He was officially reported as missing in action as of the 2nd day of November, 1950. For the purposes stated in said Act, death is presumed to have occurred on the 31st day of December, 1953”.

After Stamer’s parents had advised the Army that plaintiff was not the legal wife of their son, Sergeant Stamer, pursuant to their formal claims for the gratuity and all arrears of pay and allowances accruing to the deceased soldier, notwithstanding full knowledge that plaintiff was claiming these amounts as the lawful widow of Sergeant Stamer, the Army on October 4, 1954, paid to decedent’s parents the death gratuity in the sum of $1,694.40, on November 3,1954, paid the arrears of pay and allowances to decedent’s parents in the sum of $8,227.52, and on August 13, 1956, paid to decedent’s parents the sum of $284.90 as a refund of Government insurance deductions, the aggregate of these amounts being $10,206.82. Although plaintiff was appointed as Ad-ministratrix of the Estate of Francis Harold Stamer, who died intestate, by a probate court of Massachusetts on July 11, 1956, she had not so qualified on the dates of these payments. Plaintiff is currently, and has been, receiving a pension as the unremarried widow of Francis Harold Stamer from the Veterans’ Administration.

We find as a fact that the domicile of origin of Francis Harold Stamer was the State of New York, that he abandoned the domicile of his origin and became domiciled in California at the time of his marriage to Dorothy Mohr in April 1946, that he abandoned his California domicile at the time of bis marriage to plaintiff, December 29, 1949, changing his domicile to the Commonwealth of Massachusetts, and continued to be domiciled in, and constructively to live with plaintiff as man and wife in Massachusetts until the date of his death, which by lawful authority was found to be December 31, 1953. Plaintiff, at all times here pertinent, has been domiciled in Massachusetts.

Our findings of fact are in accord with the reported findings of fact of Commissioner Day in all respects save one. The Commissioner found “that Francis Harold Stamer was domiciled at 14630 Chatsworth Drive, San Fernando, California, at the time of his death.” With this we cannot agree. Plaintiff excepted to this finding and requested a finding that Stamer was domiciled in Massachusetts at the time of his death, or at least as of August 21,1950. We do not question the finding of the Commissioner insofar as it finds that Stamer abandoned his domicile of origin, New York, and became domiciled in California at the time of his first marriage in 1946, but we are of opinion that he changed his domicile at the time of his second marriage in December 1949. Although Stamer only lived with his first wife a short time, he continued to give her California home address as his own and name his first wife in his enlistment papers until December, 1949. However, when Stamer and plaintiff were married on December 29, 1949, he was then living in Massachusetts, being quartered on the army post at Fort Devens. In the marriage certificate, he gave Ayer, Massachusetts, as his residence, and promptly set up housekeeping with plaintiff there in rented quarters near, but off, the army post. Stamer and plaintiff continued to live together in Ayer, Mass., until his departure for service in Korea, they having moved to a more permanent home some six weeks after their marriage. Plaintiff was a lifelong resident of Massachusetts, her mother and child lived there, and she obviously had no desire or intention of leaving that state. It is true that, immediately prior to his departure and thereafter, plaintiff gave the New York address of his parents as his own address and that of plaintiff, but there is no question of the fact that the arrangement for plaintiff and her daughter to live with Stamer’s parents, was purely a temporary arrangement, to continue only during Stamer’s Korean service. All the evidence, particularly Stamer’s letters to plaintiff, indicate his definite intention to make a permanent home for himself, plaintiff and her daughter, in Massachusetts. After Stamer’s marriage to plaintiff, there are no circumstances whatever to indicate an intention on his part to retain a California domicile. He had long since ceased to live with his first wife, and the continuation of his marriage to her up until that time, was purely technical.

District of Columbia v. Murphy, 314 U.S. 441, is interesting in this connection. The Supreme Court had under consideration the domicile of public servants, prior residents elsewhere, who resided in the District of Columbia. The court held that—

_ A man does not acquire a domicile in the District simply by coming here to live for an indefinite period of time while in the Government service,

so long as such a person has the intention of returning to his previous domicile. But the court further said, p. 454:

On the other hand, we hold that persons are domiciled here who live here and have no fixed and definite intent to return and make their homes where they were formerly domiciled.

As stated in Restatement of the Law, Conflict of Laws, p. 32:

The requisites for acquiring a domicile of choice are:
“(1) Absence of intention to have a home * * * at a former domicile;
“ (21 Presence in a new dwelling place;
“(3) Intention to make this new dwelling place a home.”

We hold that these requisites were present as to Stamer on December 29, 1949, and there was no change of domicile on his part thereafter.

It is true that a soldier ordinarily does not acquire a domicile of choice by living in assigned quarters on a military post in a state other than his domicile of origin, for he must obey orders and cannot choose to go elsewhere.

If, however, he is allowed to live with his family where he pleases, provided it is near enough to his post to enable Mm to perform his duty, he can acquire a domicile where he lives. Illustrations: * * * (3) A’s domicile is X. A is an army officer stationed at Y. He is permitted to live outside the army post. A marries a resident of Y, purchases a house in Y, and lives there with his family with intention of making it his home. A acquires a domicile of choice in Y. (Restatement of the Law, Conflict of Laws, 41,42.)

This illustration is most analogous to Stamer’s situation* the only substantial difference being that he did not “purchase a house”, but established a home for himself and plaintiff in rented quarters.

See also 17A, Am. Jur. 228:

There is some difficulty, of course, in establishing a, domicile of choice on the part of a serviceman where the place in which he lived was one at which his obligations as a serviceman compelled him to live. In a few cases it has been held that legal residence or domicile,, in a state could not be acquired by residence on a military reservation under United States jurisdiction although such reservation is situated within the borders of a state. On the other hand, if a person engaged in military service by animus and factum establishes a residence outside the military post, with the purpose of making such residence the home of himself and his wife, he may acquire a domicile in such place.

See also St. John v. St. John, 291 Ky. 363, 163 S.W. 2d 820, Allen v. Allen, 52 N.M. 174, 194 P. 2d 270; Wallace v. Wallace, 371 P. 404, 89 A. 2d 769.

Plaintiff contends that she is the legal widow of Stainer* the deceased soldier, on two alternative grounds: first, she contends that the annulment of Stamer’s first marriage in California related back to the date of the marriage so as to have eliminated any impediment standing in the’ way of Ms marrying plaintiff, although the decree of annulment was not entered until after the date of the second marriage; and second, that a Massachusetts curative statute (Massachusetts General Law, Ch. 207, Section 6) operated to validate plaintiff’s second marriage on August 21, 1950; the date of the annulment decree. The statute relied on is as follows:

Marriage During Existence of Former Marriage Valid* When. — If a person, during the lifetime of a husband or wife with whom tire marriage is in force, enters into a subsequent marriage contract with, due legal ceremony, and1 the parties thereto live together 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 had been removed by 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.

Taking up these contentions in inverse order, it is obvious that, applying this statute to the facts found, most of the requisites of the statute have been complied with. Stamer •and the plaintiff, during the lifetime of his first wife with whom his marriage was still in force, entered into a subsequent marriage contract with due legal ceremony, and lived together as husband and wife. This subsequent marriage ■contract was entered into by one of the parties, the plaintiff, :in good faith, without knowledge of such former marriage, .and the impediment to their marriage was removed by the ■California annulment decree of August 21, 1950. There remains only the question of whether, after the removal of ■this impediment, Stamer and plaintiff continued to live together as husband and wife in good faith on the part of one •of them, in order that they be held to have been legally married from and after the removal of the impediment. 'There is no question of the good faith of plaintiff, but it is ■trae that plaintiff and Stamer did not physically live together after August 21, 1950, the date of the annulment ■decree, because Stamer left for service in Korea on August :2,1950, and never returned.

Stamer did not leave plaintiff on August 2, 1950, voluntarily: on that date and prior thereto they were living together amicably and happily, and Stamer left plaintiff solely by reason of the compulsion of the military order requiring him so to do. Stamer’s letters, after his departure, clearly show that he loved the plaintiff dearly, held her in the highest esteem, and that he was most anxious to return and make a permanent home for her and her daughter. Under these circumstances, we hold the Massachusetts law to be that Stamer and the plaintiff constructively continued to live together until the time of his death, presumptively on December 81, 1953.

In Carr v. Hobby, Secretary &c., 125 F. Sup. 545, the Massachusetts District Court, in construing the statute hereunder consideration, held that to equate living together with cohabitation, was too narrow an interpretation to place on the statute, and further indicated that, under Massachusetts law,

a husband and wife might be found to be living together within the meaning of Section 6 (the statute here under consideration) even though at the time that the impediment was removed, they were separated because of illness, difficulty in finding living quarters or financial difficulties.

In Lopes Case, 332 Mass. 39, 123 N.E. 2d 217, the court held that, although the husband left his wife at their home in Massachusetts and went to the Cape Verde Islands, seeking to regain his health, was away for a year prior to the death of his wife, but remained on amicable terms and corresponded with her, that at his wife’s death she was a “wife with whom he lives” at the time of her death. See also Harrrington's Case, 297 Mass. 125, 7 N.E. (2) 732, and Gilson's Case, 254 Mass. 460, 150 N.E. 183, which are in accord.

In Moss v. Tanner (5th Circ.), 44 F. (2d) 928, in construing a provision of the Longshoreman’s Act, the court said (p. 930) :

This provision does not indicate a purpose to make a physical dwelling together of a decedent and his wife at the time of the former’s death necessary to bring them within the meaning of the words “living together”' when at that time there had been no estrangement between them and no intention on the part of either of them to sever, even temporarily, their marital relations. A husband and wife do not cease to “live together”' within the meaning ordinarily conveyed by those words when used with reference to married persons, as a result of one of them being temporarily absent from their home-while engaged in work which was undertaken with the. purpose of acquiring money for use in paying for or maintaining their home.

The fact that plaintiff and Stamer were married in New Hampshire, is not important, because the Massachusetts ■courts have uniformly held that the curative statute operates equally to cure defects in marriages contracted outside ■of Massachusetts as well as those contracted within the state Royal v. Royal, 324 Mass. 613, 87 N.E. (2) 850, Carmichael v. Carmichael, 324 Mass. 118, 85 N.E. (2) 229, Vital v. Vital, 319 Mass. 185, 65 N.E. (2) 205.

Coming now to plaintiff’s initial contention that her marriage to Stamer on December 29, 1949, was valid, for the reason that the California court’s decree of August 21, 1950, adjudicating that the marriage between Stamer and his first wife “is annulled and is of no force and effect whatsoever,” caused the status of the parties to be the same as if that marriage had never taken place, and therefore removes the impediment existing on December 29, 1949, it seems that the California authorities support her contention. This question was carefully considered and the authorities reviewed ■by a California District Court in the case of Pearsall v. Folsom, Secretary &c., 138 F. Sup. 930. There, the Plaintiff was awarded “mother’s insurance” under the Social Security Act as the unremarried widow of a wage earner. Later, she ■entered into a second marriage and her Social Security benefits were terminated. Thereafter, finding that the second marriage was voidable for fraud on the part of the second husband, a California court decreed annulment. Her application that her payments be renewed being denied, she instituted action against Folsom, Secretary, and the court held that her second marriage having been annulled, the defendant must consider her as never having been remarried. The opinion refers to McDonald v. McDonald, 6 Cal. (2) 457, 58 P. (2) 163, 104 A.L.R. 1290, as the leading case dealing with •annulment and voidable marriages. There the California rule is stated as follows:

Appellant’s argument overlooks the nature of an annulment proceeding. A marriage cannot be annulled unless there was something legally wrong with it in its inception. Under the very language of section 82 of the Civil Code, an annulment is granted for causes “existing at the time of tbe marriage.” A marriage valid in all respects when contracted can never be annulled. The meaning of the phrase “good until annulled”, used in the above cases, is simply that in the case of voidable marriages (as distinguished from void marriages) a right of action to dissolve it for some cause existing at the time the marriage was contracted has no effect on the relationship until such right is exercised. A familiar analogy exists in the law of contracts. Thus a contract may be voidable and subject to rescission, because of some infirmity in its procurement, but, unless attacked by notice of rescission or by suit, will not be avoided, but will remain binding. Garcia v. California Truck Co., 183 Cal. 767, 192 P. 708. So with voidable marriages. The parties may or may not exercise their legal right to have them annulled, and, if they do not exercise such right, the marriages are binding, but, when annulment is sought, it can be granted only if there was some element of invalidity in the contracting of the marriage. Thus, in Millar v. Millar, 175 Cal. 797, 806, 167 P. 394, 398, L.R.A. 1918B 415, Ann. Cas. 1918E, 184, it is stated: “Strictly speaking the word ‘divorce’ means a dissolution of the bonds of matrimony, based upon the theory of a valid marriage, for some cause arising after the marriage, while an annulment proceeding is maintained upon the theory that, for some cause existing at the time of marriage, no valid marriage ever existed. This is true even though the marriage be only voidable at the instance of the injured party, or in the words used in Estate of Gregorson, 160 Cal. (21) 25, 116 P. 60, L.R.A. 1916C, 697, Ann. Cas. 1912D, 1124, ‘capable of being annulled’. And the decree of nullity in such a proceeding determines that no valid marriage ever existed.” See also Goodrich, Conflict of Laws, p. 302. [Italics supplied.]

See also In re Eichhoff, 101 Cal. 600, 36 P. 11, Biles v. Biles, — Cal. —, 236 P. (2) 621.

In the case of Sefton v. Sefton, 45 Cal. (2) 872, 291 P. (2) 439, the California court recognized an exception to the “relation back” doctrine. However, the factual situation there had no analogy to the facts of this case.

We therefore hold that the decree of annulment entered by the California court related back to the inception of Stamer’s first marriage, rendering it void from its inception, thus removing any impediment to the validity of the marriage of Stamer and plaintiff.

As to the Government’s defense and contingent claim, it appears that on October 4, 1954, and thereafter, defendant,, the United States, pursuant to the formal claim of George F. Stamer and Catherine Stamer, parents of the deceased soldier, paid to them all the sums due on account of decedent’s death and which are here in controversy. Although she had not, on October 4, 1954, been appointed as admin-istratrix of the estate of the deceased soldier, plaintiff, through her attorney, had given notice to the Army of her claim to be his widow and entitled to such stuns as might be due her as such. Defendant contends that no matter what plaintiff’s rights may be, as to George F. and Catherine Stamer, the defendant has no liability to her, its payments to the parents being justified by 10 U.S.C. 868, the pertinent part of which is as follows:

Hereafter in the settlement of the accounts of deceased officers or enlisted persons of the Army, where no demand is presented by a duly appointed legal representative of the estate, the accounting officers may allow the amount found due to the decedent’s widow, widower, or legal heirs in the following order of precedence: First to the widow or widower, or if the widow or widower be dead at the time of settlement, then to the children or their issue, per stirpes, third, if no widow, widower, or descendants, then to the father and mother in equal shares; * * *

No legal representative of the deceased soldier having been appointed, if plaintiff was the widow of the deceased soldier, she was plainly entitled to the payments which the defendant made to the parents of the deceased. As plaintiff had not procured a declaratory judgment declaring her to be the legal widow of the deceased soldier, as requested by defendant, defendant chose not to wait for the plaintiff or ■¡deceased parents to institute action against it and be put to their proof as to who was entitled to the money, but proceeded in effect to make a judicial determination that plaintiff was not the legal widow of the deceased soldier and make the payments to his parents. We hold that the defendant made these payments at its peril, and since we have concluded that plaintiff was decedent’s widow and entitled to these payments, she is entitled to a judgment against the defendant for the aggregate amount erroneously paid to the soldier’s parents.

This is in accord with the recent holding of this court in Howell v. United States, and Belew, Third Party Defendant, 141 C. Cls. 699. There, the situation was quite analogous. The stepmother of a deceased soldier, who had raised him from a child, made claim on the Air Force for his accrued pay and allowances, to which she had. been made beneficiary by the soldier’s will. At the time she made her claim, the will had not been probated, as the soldier was still being carried in a “missing” status, but the Air Force was supplied with a copy. After the presumptive death of the soldier, the stepmother probated the will and was appointed executrix of the soldier’s estate. However, she then found that the Government had already made payment to the soldier’s natural mother pursuant to her claim, relying upon 10 U.S.C. 868, supra. This court held that the defendant’s payment to the natural mother did not discharge defendant’s obligation to make payment to the specifically designated beneficiary in accordance with the express wishes of the deceased, especially since the defendant had full knowledge of the terms of the will at the time of the erroneous payment.

It is distressing that this controversy between the widow and the parents of the deceased soldier has arisen. Master Sergeant Stamer was a gallant soldier who gave his life for his country. It is apparent from the record that a close and affectionate relationship existed between the son, his parents, his sister and brother. It is equally apparent that he loved his wife dearly. It is too bad that their inevitable sadness over his death should be aggravated by this controversy. However, as the controversy exists, we must resolve it.

We hold that the plaintiff is entitled to recover of and from the United States the sum of $10,206.82, and since this sum has been erroneously paid to third party defendants, George and Catherine Stamer, by the defendant, the United States, it is entitled to recover that amount from them. Judgments will be entered accordingly.

It is so ordered.

MaddeN, Judge, and JoNes, Chief Judge, concur.

Whitaker, Judge,

concurring in the result.

I concur in the result reached by the majority on the second alternative ground upon which the majority bases its decision, to wit, that the annulment of the first marriage contracted in California on the ground that it had been procured by fraud, made it void from the beginning and thus validated Francis Harold Stamer’s marriage to plaintiff in the interim.

Under the California statutes, apparently, a marriage procured by fraud of one of the parties is not void, but voidable. Although procured by fraud, the other contracting party may waive the fraud, in which case the marriage is valid. But, where the other contracting party, upon discovering the fraud, seeks to have the marriage annulled, and it is annulled, the result is the same as if no marriage had ever been entered into. This being true, a subsequent marriage, although invalid when entered into, is validated by the decree of annulment.

As to the other ground upon which the majority bases its decision, I have grave doubt whether or not plaintiff ever acquired a domicile in Massachusetts, and even if he had, I think it is probable that he changed his domicile from Massachusetts to New York when he removed his wife to the home of his parents in New York, where she continued to live after his departure for Korea. After his departure, she removed from the home of his parents and found quarters of her own in New York, and even went back to Massachusetts for the purpose of bringing her child to New York, where she put her in school. My uncertainty about whether or not plaintiff acquired a domicile in Massachusetts, and whether or not he lost it when he moved to New York, makes me prefer to rest the decision on the second alternative ground stated by the majority, to wit, that the annulment of the California marriage made it null and of no effect from the beginning, and thus validated Francis Harold Stamer’s marriage to plaintiff.

Being validly married to plaintiff, as I think he was, she was entitled to collect the money which the defendant erroneously paid to Francis Harold Stamer’s parents.

I agree that the defendant is entitled to judgment over-against George F. Stamer and Mrs. Catherine Stamer, the-, parents of Francis Harold Stamer.

LaRamoke, Judge,

concurring in part and dissenting in*, part:

I concur in the majority opinion that plaintiff is entitled to recover of and from the United States the sum of' $10,206.82.

However, I must respectfully dissent to the conclusion, that “since this sum has been erroneously paid to third party-defendants, George and Catherine Stamer, by the defendant,, the United States, it is entitled to recover that amount from them.”

While this issue was neither argued nor raised by the-briefs, I have grave doubts that the Government can inter-plead a third party defendant in an action such as this. True,, if the Government erroneously paid money to a third party, a suit would lie for the return of said payment. However,. I believe the suit should be in a court which can give to the defendant the constitutional right to a trial by a jury, if it so-desires. Since no such right can be granted by this court,. I would dismiss the defendant’s action against the third party defendants. See dissenting opinion in Maryland Casualty Company v. United States, 135 C. Cls. 428, 439.

FINDINGS OF FACT

The court, having considered the evidence, the report of' Commissioner William E. Day, and the briefs and argument. of counsel, makes findings of fact as follows:

1. The plaintiff is a citizen of the United States, and a., resident of the Commonwealth of Massachusetts, residing at. 12 Pierce Street, Arlington Heights.

2. This suit is brought by the plaintiff, claiming as the», widow of a deceased soldier, Master Sergeant Francis Plarold Stamer, to recover back pay, six months’ death gratuity and-' apparently in the alternative in the event of an adverse-decision on the above, to recover an amount equal to an allotment of $240. per month for a twenty-month period.

3. Tbe defendant has filed a contingent cross-claim against George F. Stamer and Catherine Stamer, the father and mother of the soldier. On October 4,1954 the defendant paid the six months’ death gratuity in the sum of $1,694.40 to the father, and on November 3,1954 paid arrears of pay due the soldier in the sum of $8,227.52 to his parents. The above payments were made by the Army.

4. Francis Harold Stamer enlisted in the Regular Army on May 3,1939 in New York City. He was then 24 years old, (date of birth January 3,1915). He was unmarried. In his enlistment papers he gave as his address 117-23 197th Street, St. Albans, Long Island, New York, which was the home of his parents. He was given an honorable discharge at Fort Dix, New Jersey on November 21,1945, and gave as his permanent address the same address as given above, that of his parents.

5. Although the circumstances under which the soldier did so are not clear, between November 21,1945 and June 29,1946, the soldier went to San Fernando, California. He there married a Dorothy Mohr during the period referred to above. On June 29,1946 the soldier enlisted in the Regular Army at Pasadena, California. In his enlistment papers he gave as his address, 14630 Chatsworth Drive, San Fernando, California. He named his wife, Dorothy Stamer, of the above San Fernando address as his beneficiary. He named his mother as his nearest relative, and the person to be notified in case of emergency.

6. The soldier was honorably discharged by the Army on June 29,1949. On July 11,1949, at New Orleans, Louisiana he re-enlisted in the Army. He was in Louisiana because he had recently arrived in the United States from Panama where he had been stationed. The address shown on his enlistment record at that time was 14630 Chatsworth Drive, San Fernando, California. He gave his wife Dorothy Stamer of that address as the person to be notified in case of emergency, with his mother named as an alternate. His wife was also named as the custodian to whom personal effects were to be shipped. She was also designated by him as the person to receive six months’ gratuity pay in event of his death. His mother and then his sister were named as alternates. In this enlistment the soldier enlisted for assignment with the 7th Infantry Eegiment at Fort Devens, Massachusetts.

7. In the meantime, the soldier had furnished the following information for his record of emergency data. On December 28,1948 he designated first his father, then his sister, both of 138 Devonshire Drive, New Hyde Park, New York as the persons to be notified in case of emergency. He named his father as the custodian to whom personal effects were to be shipped. He named his father to receive 100 percent of his pay under the heading: “As a guide in administering legislation governing the well-being and protection of my dependents in the event that I am unable to make provision therefor, * * He also named his wife Dorothy Stamer of the San Fernando address as the person to receive the six months’ gratuity pay in event of death, with his father and then his sister as alternates.

8. On December 22, 1949 the soldier re-enlisted in the Kegular Army at Fort Devens, Massachusetts for an indefinite period. He gave as his address 14630 Chatsworth Drive, San Fernando, California.

9. Two days earlier, on December 20,1949, he furnished the following information for his record of emergency data. He named his father as the person to be notified in case of emergency, with his brother as alternate. He named his father as the custodian to whom personal effects were to be shipped. He named his father to receive 50 percent of his pay under the heading relating to the administering of legislation for the well-being and protection of dependents. He named his wife Dorothy Stamer of the San Fernando, California address as the person to receive the six months’ gratuity pay in case of death, with his father, then his brother as alternates.

10. In the meantime the soldier had become acquainted with the plaintiff who had been divorced since 1942. On December 23, 1949 the plaintiff and the soldier went to Nashua, New Hampshire and gave notice of their intention to be married. They returned to Nashua, New Hampshire on December 29, 1949 and went through a marriage ceremony at that time. The marriage certificate is in evidence and shows that at that time the plaintiff was 31 years old, and gave her residence as Arlington, Massachusetts. The soldier was 34 years old, and showed his residence as Ayer, Massachusetts. This was the nearest town to Fort Devens, about three or four miles distant. The marriage certificate shows that the plaintiff was divorced and that it was her second marriage. The soldier falsely stated that it was his first marriage.

11. On the night of December 29,1949, after the marriage ceremony, the soldier telephoned his mother and talked with his mother and his sister, both of whom were concerned and told him so, since they knew, as he knew, that he already had a wife. The plaintiff has testified that she did not converse with the mother or the sister but the evidence is convincing that she did so, and at that time learned that the soldier already had a wife.

12. The plaintiff and the soldier lived as husband and wife in a trailer court called Casa Manor at Ayer, Massachusetts for about six weeks and then at 42 East Main Street, Ayer, Massachusetts, until August 2,1950 when the soldier departed with his unit for Korea. During part of this time he was away on military maneuvers.

13. About February 20, 1950 the soldier’s mother and sister went to Boston, Massachusetts and stayed at the Copley Plaza Hotel for two or three days. The plaintiff and Francis Harold Stamer were with his mother and sister several times during this visit, having had dinner at the hotel one evening, and at a restaurant, after a drive on another evening. Discussions were had among the four as to the prior existing marriage of the soldier.

14. It is admitted by the plaintiff, that in April 1950 she knew that she was not legally married to Francis Harold Stamer because of his prior existing marriage to Dorothy. Despite this knowledge the plaintiff and Francis Harold Stamer continued to live as husband and wife.

15. On July 24,1949 the soldier made a Class E allotment of $40. per month to his wife, Dorothy Stamer. This was paid by the Army until March 31, 1951 when such payment was discontinued.

16. Since the plaintiff had never received an allotment check, prior to the soldier’s departure for Korea, there were many discussions between the plaintiff, the soldier and his parents concerning the soldier’s prior marriage. The result of such discussions was that the soldier’s parents loaned the plaintiff $250. which she gave to the soldier for the purpose of securing a divorce or annulment of his prior marriage.

17. The soldier was referred to a lawyer by the plaintiff. That lawyer, through a California lawyer, began legal proceedings for the annulment of the marriage between Francis Harold Stamer and Dorothy Mohr Stamer. Dorothy was the plaintiff. The soldier as defendant filed his general appearance and waived his rights under the Soldiers and Sailors Civil Eelief Act, and consented to trial without notice. The cause came on for hearing on August 3,1950 in the Superior Court of California in and for the County of Ventura. On August 21, 1950 that court entered its decree of annulment which reads in part as follows:

Now, therefore, the court finds that plaintiff is a resident of California, and that good cause for annulment of the said marriage exists. The court further finds that plaintiff has filed her amended complaint alleging that the misrepresentations of defendant were the inducing cause for plaintiff’s consent to said marriage, and were so intended by defendant.
It is hereby ordered, adjudged and decreed that the marriage between plaintiff and defendant is annulled and is of no force and effect whatsoever; and further that plaintiff Dorothy Stamer has restored to her, her maiden name of Dorothy Mohr.
Done in open court this 21st day of August, 1950.

18. Within a week after the soldier’s departure, the plaintiff left Massachusetts to live with his parents in New York State. The soldier had made arrangements with his parents for her to do so. The parents were planning to sell their home and move to an apartment, but the arrangement was that the plaintiff might live with them until that move was accomplished. This was done. The plaintiff took most of her household effects leaving only a few items with her mother in Massachusetts. She returned to Massachusetts only briefly toward the latter part of August for the purpose of getting leave of court permitting the removal to New York of her minor daughter of a previous marriage.

19. Up to the time of the annulment the soldier had claimed and had been paid a quarters’ allowance for Dorothy Stamer as his wife. No quarters’ allowance was ever claimed by the soldier on account of the plaintiff as his wife.

20. On August SI, 1950 the soldier authorized a Class E allotment to plaintiff in the amount of $200. per month, effective September 1, 1950. This authorization showed plaintiff’s address as New Hyde Park, Long Island, New York. On September 25,1950 the soldier increased plaintiff’s monthly allotment to $240. per month, effective November 1, 1950. She was then shown as living in St. Albans, Long Island, New York.

21. Francis Harold Stamer was reported missing in action in Korea on November 2, 1950. By letter dated December 12, 1950 plaintiff notified the Department of the Army that she was moving her residence from New York to Massachusetts. The plaintiff had in the meantime moved back to Massachusetts.

22. By error the allotment which the soldier had made for Dorothy M. Stamer had not been discontinued when she received her decree of annulment on August 21, 1950. As soon as the error was discovered by the Army the allotment was discontinued, effective March 31,1951.

23. Excessive deductions caused by the simultaneous payment of the allotments to Dorothy M. Stamer and the plaintiff had created a deficit in the soldier’s accounts. Consequently the plaintiff’s allotment was discontinued on April 30,1951 in order that the deficiency might be made up. Allotments had been paid to plaintiff for the period November 1,1950 through April 30,1951.

24. By letter dated April 4, 1951 the Department of the Army advised Representative Edith Nourse Rogers, who had interested herself in the plaintiff’s case, that plaintiff was not regarded as the wife of the soldier. On April 17, 1951, George L. Wilson, Esq., as attorney for plaintiff, wrote to assert to the Army plaintiff’s contention that she was the lawful wife of the soldier.

25. In order to clarify plaintiff’s opposition and to determine her eligibility for continued receipt of the Class E allotment, the Department of the Army, by letter dated May 9,1951, requested plaintiff to obtain a declaratory judgment from a court of competent jurisdiction as to her marital status.

26. By letter dated May 23,1951 the parents of the soldier, third party defendants herein, through their attorney, Thomas J. Mirabile, Esq., filed notice of their claim to all monies due the soldier. On June 8,1951, Mr. Mirabile again wrote on behalf of the soldier’s parents to assert their claim as the only persons entitled to any monies due the soldier.

27. On June 27, 1951 the Department of the Army informed the attorney for the soldier’s parents that the allotment paid to the plaintiff had been discontinued on receipt of evidence that the soldier’s marriage to plaintiff was void. Thereafter, on July 26, 1951, the Army advised plaintiff’s attorney that, in the absence of a declaratory judgment to the contrary, there was no authority to re-establish plaintiff’s allotment because she was not related to Francis Harold Stamer. This position was reiterated by letter of October 24,1952 advising that the Army would make no payment to plaintiff in the absence of proof that she was the wife of the missing soldier.

28. On December 31, 1953, Francis Harold Stamer was found by lawful authority to be dead. He died intestate and without issue.

29. It is found that Francis Harold Stamer was domiciled in Ayer, Massachusetts at the time of his death.

30. On July 31, 1950 Francis Harold Stamer applied for and was issued National Service Life Insurance, in which application he named the plaintiff as the principal beneficiary in the sum of $10,000. He gave as his address 138 Devonshire Drive, New Hyde Park, New York, the home of his parents. He also showed this as his address on such application.

31. The plaintiff has been paid the $10,000, insurance by the Veterans Administration.

32. The plaintiff is currently, and has been, receiving a pension as the unremarried widow of Francis Harold Stamer from the Veterans Administration.

33. On January 15, 1954 the deceased soldier’s parents requested that they be supplied with all forms necessary to apply for monies which might be due the decedent.

34. By letter dated June 2,1954, plaintiff was again urged by the Army to submit some evidence which would clarify her marital status. On the same date the Department of the Army advised the decedent’s parents of the types of benefits accruing to their son, and also informed them that no conclusive determination of his marital status had been made pending receipt of necessary data. In response to this communication, decedent’s parents, by letter dated June 11,1954, advised the Army that plaintiff was not the legal wife of decedent because he was already married when the purported marriage to plaintiff took place.

35. On September 21, 1954 the parents presented to the Department of the Army their formal claim for the six months’ death gratuity and for all arrears of pay and allowances accruing to decedent’s account. Pursuant to the claim thus made, and because no requested proof of the legality of her marriage had been submitted by plaintiff, the Army, on October 4,1954, paid the six months’ death gratuity to George F. Stamer, decedent’s father, in the full amount of $1,694.40. For the same reasons, on November 3, 1954, the arrears of pay and allowances were paid to decedent’s parents in the full amount of $8,227.52. Thereafter, on November 16,1954, the attorney for plaintiff inquired of the Army about benefits which plaintiff might obtain if she secured a declaratory judgment as to her marital status. The Army replied to plaintiff by letter of November 24, 1954 that all sums due decedent or on account of his death had been paid.

36. On August 13, 1956 the final transaction in Francis Harold Stamer’s account was made when the Department of the Army paid his parents $284.90 as a refund of Government insurance deductions.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover of and from the United States the sum of ten thousand two hundred sis dollars and eighty-two cents ($10,206.82).

It is further concluded that the defendant is entitled to recover on its cross-claim against tire third party defendants and it is therefore ordered and adjudged that the defendant recover of and from the third party defendants the sum of ten thousand two hundred six dollars and eighty-two cents ($10,206.82).  