Arcand v. Flemming

• Decision Date: 22 June 1960
• Docket Number: Civ. No. 7909.
• Citation: 185 F. Supp. 22
• Parties: Lois ARCAND, individually and Lois Arcand, as mother and next friend of Ronald Arcand and Marilyn Arcand v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare.
• Court: U.S. District Court — District of Connecticut

185 F. Supp. 22

Lois ARCAND, individually and Lois Arcand, as mother and next friend of Ronald Arcand and Marilyn Arcand v.Arthur S. FLEMMING, Secretary of Health, Education and Welfare.

Civ. No. 7909.

United States District Court D. Connecticut.

June 22, 1960.

Lessner, Rottner, Karp & Groobert, Manchester, Conn., for plaintiff.

Harry W. Hultgren, Jr., U. S. Atty., Hadley W. Austin, Asst. U. S. Atty., Hartford, Conn., for defendant.

J.JOSEPH SMITH, Chief Judge.

This is an action brought under Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), for review of a decision of the Secretary of Health, Education and Welfare denying plaintiff's claim for Children's Insurance Benefits under the Old Age and Survivors Insurance provisions of the Social Security Act, 42 U.S.C.A. § 401 et seq.This action for review is brought by Lois Arcand, individually and on behalf of her children, Marilyn and Ronald Arcand who claim benefits as children of the deceased wage earner, Maurice A. Arcand.It is the latter claim with which we are concerned here.The claim was denied after a hearing before the Referee on the ground that the children would not be entitled to inherit intestate personal property from the deceased wage earner, Maurice A. Arcand, under Connecticut law and therefore are precluded from receiving benefits under the Act as children of the insured.It was decided that the children were illegitimate under Connecticut law for the purposes of intestate succession since the mother of the children and Maurice A. Arcand, the putative father, were never legally married.

The facts are not in dispute and can be stated as follows: Maurice A. Arcand married one Rosina L'Ecuyer on February 1, 1930 in New York.On March 10, 1940, Maurice married the plaintiff in this action, Lois Arcand, in Vermont.At this time the first wife, Rosina, was still alive and the marriage between her and Maurice had not been dissolved.Lois, however, was unaware of the prior marriage.Shortly after their marriage in Vermont, Maurice and Lois moved to Connecticut where they established a permanent residence.They lived together in this state as man and wife and two children, the present claimants, were born of this relationship.Marilyn was born in 1940 and Ronald in 1944.Later, Lois learned of her mate's prior marriage and insisted that he obtain a divorce so that they could validate their marriage.Maurice agreed and instituted divorce proceedings in the Probate Court of Hampden County, Massachusetts, and on December 16, 1953 was granted a divorce by decree nisi to become absolute on June 17, 1954.On February 24, 1954, before the expiration of the interlocutory period under the Massachusetts decree and while the first wife, Rosina was still living, Maurice and Lois had a second marriage performed by a Justice of the Peace in Darien, Connecticut.It was Lois' belief at this time that no impediment existed and that she and Maurice were free to enter into a valid marriage.The parties continued to reside together until April 24, 1956 when Lois obtained a divorce from Maurice in Connecticut.Maurice subsequently died on November 17, 1956 in Connecticut which was his place of domicile at the time of his death.

The question in this action for review of the decision of the Referee is whether the claimants, Marilyn and Ronald Arcand, are children of the insured within the meaning of the Act so as to make them eligible for Child Insurance Benefits under 42 U.S.C.A. § 402(d).Title 42 U.S.C.A. § 416(h)(2) provides that in determining whether an applicant is a child of the insured, the law applied shall be the same as would be applied in the courts of the state where the insured was domiciled at the date of death to determine the devolution of intestate property.We must look to the body of law on this subject in Connecticut since the insured was domiciled here at the time of his death.

Although an illegitimate child is allowed to inherit from the mother in Connecticut, Brown v. Dye, 1795, 2 Root, Conn., 280;Heath v. White, 1824, 5 Conn. 228;Dickinson's Appeal, 1875, 42 Conn. 491;Eaton v. Eaton, 1914, 88 Conn. 269, 91 A. 191, there is no corresponding right of a child with such a status to inherit from the putative rather or succeed to the devolution of the father's intestate property.Heath v. White, supra.A child born out of wedlock may acquire rights of inheritance from and through the father if the parents are later joined in a legal marriage.Section 7058 of the General Statutes of Connecticut(1949 Revision), in effect at the time of the insured wage earner's death, provided in part:

"Children born before marriage whose parents afterwards marry shall be deemed legitimate and inherit equally with other children."

It follows that the children's right to benefits in the instant case can be established only if it is found that Lois and Maurice Arcand were legally married so as to legitimize the children born of this relationship.At the time of the Darien marriage on February 24, 1954, an impediment unquestionably existed since the Massachusetts divorce decree did not become absolute until June 17, 1954.There is a Massachusetts statute which provides for the validation of a marriage which takes place at a time where an impediment exists but where one of the parties acts in good faith and where the impediment is later removed.Chapter 207, Section 6 of the General Laws of Massachusetts(Ter.Ed.) provides as follows:

"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 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 marriage had been annulled by a divorce * * * 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."

The Referee, relying on Commonwealth v. Stevens, 1907, 196 Mass. 280, 82 N.E. 33, held that the Massachusetts statute could not be applied to validate the marriage and legitimize the children when the parties to the marriage were residing outside of Massachusetts at the time the decree nisi became absolute.We think that his reliance on such a broad holding in the Stevens case was misplaced.Commonwealth v. Stevens, supra, was a case involving a criminal prosecution for polygamy.The defendant obtained a divorce from his first wife by decree nisi in Massachusetts.Before the decree became absolute, the defendant removed to Georgia and after residing there for four months married Minnie Tourtelotte who was unaware that an impediment existed at the time of the marriage.The parties set up residence and remained in Georgia until after the interlocutory period under the Massachusetts divorce decree expired.They later came to Massachusetts but had no further marriage ceremony performed.Thereafter, the defendant...