Kelly v. Metropolitan Life Insurance Company, No. 69 Civ. 3649.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtFriend, Post & Hopkins, New York City, for defendant; David R. Crow, New York City, of counsel
Citation352 F. Supp. 270
PartiesRose KELLY, Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY, sued herein as Office of Federal Employees' Group Life Insurance, Defendant.
Docket NumberNo. 69 Civ. 3649.
Decision Date15 November 1972

352 F. Supp. 270

Rose KELLY, Plaintiff,
v.
METROPOLITAN LIFE INSURANCE COMPANY, sued herein as Office of Federal Employees' Group Life Insurance, Defendant.

No. 69 Civ. 3649.

United States District Court, S. D. New York.

November 15, 1972.


352 F. Supp. 271

Thomas A. Manning, Ronkonkoma, N. Y., for plaintiff; Eugene Kelly, of counsel.

Friend, Post & Hopkins, New York City, for defendant; David R. Crow, New York City, of counsel.

LEVET, District Judge.

This is an action for a declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring plaintiff to be the widow of the deceased-insured, pursuant to a common-law marriage under the laws of the State of New York, and directing defendant to pay over such sums allegedly due and owing plaintiff under a policy of life insurance issued by defendant upon the life of plaintiff's deceased common-law husband.

After hearing the testimony of the parties, examining the exhibits and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. This court has jurisdiction over the subject matter of the litigation and the parties thereto.

2. Decedent, William McGraw, a postal employee, was insured under Group Policy numbered 17000-G issued by Metropolitan Life Insurance Company to the United States Civil Service Commission, the policy holder, in the face amount of $20,000 and a certificate under Group Policy numbered 17000-G was issued to McGraw thereunder. No beneficiary was named by William McGraw. (See pretrial order stipulation.)

3. Group Policy 17000-G provides:

"* * * If, at the death of the Employee, there be no designated Beneficiary as to all or any part of the insurance, then the amount of the insurance payable for which there is no designated Beneficiary shall be payable to the person or persons listed below surviving at the date of the Employee's death, in the following order of precedence:
"(1) To the widow or widower of the Employee; * * *." (Ex. 2.)

4. Rose Kelly (sometimes referred to as "Rose") was born in Scotland in 1900. In 1910 she came to America with her father with whom she lived until his death in 1929. In April of 1929 Rose took up residence and lived with William McGraw (sometimes referred to as "McGraw"). They lived together as husband and wife in an apartment at 548 West 40 Street, New York City. When Rose Kelly first began living with William McGraw she adopted the surname "McGraw" as her own. William McGraw supported Rose and always introduced her to his friends as his "wife." (5-9.)1

5. On July 11, 1934 Rose gave birth to a son fathered by William McGraw. The son was named John D. Kelly. Rose Kelly was and is a Catholic and wanted her son John to be baptized Catholic, while William McGraw, a Protestant, protested. McGraw would not consent to his son being raised a Catholic. Rose, therefore, without the knowledge of William McGraw, had the son baptized John D. Kelly. John continued to live with his parents until his marriage in 1957. (10-12, 23-25.)

6. The husband and wife relationship between Rose and William McGraw continued

352 F. Supp. 272
until 1941 when McGraw was drafted into the Army. Rose did not see McGraw while he was in the Army; however, she communicated frequently with him by letter. (8-11.)

7. Rose and William McGraw resumed their husband and wife relationship after his discharge from the Army in 1943, taking up residence in Corona, Long Island (New York). Rose continued to live with McGraw in Corona until 1966 when she underwent a serious face operation.2 After the operation Rose, because of her health, moved to New Milford, Connecticut. (13-15.)

8. While living in New Milford Rose continued to see McGraw. She would travel to McGraw's new residence in New York City and live with him for a period of time. In similar fashion, McGraw would go to New Milford and stay with Rose. Whenever they would visit each other they would resume their relationship as it had been before the operation. Furthermore, McGraw continued to support Rose while she lived in New Milford, paying for her rent and food. (15-17.)

9. On January 8, 1968 William McGraw died; Rose paid the funeral expenses. (18.)

10. McGraw's Army discharge papers, dated October 27, 1944, under the printed word "single" is a typed "X." This indicates that some Army clerk concluded on whatever basis that McGraw was single. There is no proof that McGraw ever read the portion in question. If he had, then, no doubt, he had some aversion to mentioning a common-law marriage, as did Rose. (Ex. D.)

11. On the death certificate of William McGraw it is stated:

"a. Name of Informant: Rose Kelly. b. Relationship to deceased: Cousin." (Ex. A.)

Plaintiff's explanation of this statement was as follows: She spoke to the funeral director and when he asked the relationship she told him that she was his cousin. The reason being, as Rose put it: "I was a common-law wife. I lived in a small town and I didn't want the people around to hear I was a common-law wife. So I didn't know what to put down. So I put down cousin. It was no business of theirs." (59, 60.)

At Rose's deposition on February 2, 1970 she further explained this as follows:

"* * * I was over in the
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3 practice notes
  • U.S. v. Jarvison, No. 04-2093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 23, 2005
    ...community to be married. Lowery, supra at 405-06; In re Ketchum, 2 Navajo Rptr. 102, 104-105 citing Kelly v. Metropolitan Life Ins. Co., 352 F.Supp. 270 (S.D.N.Y.1972) (listing essential features of common law marriage), and Meister v. Moore, 96 U.S. (6 Otto) 76, 24 L.Ed. 826 (1878) (decidi......
  • Tucker v. Johnson, Civ. A. No. 37553.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • December 22, 1972
    ...was inadmissible at petitioner's trial, we must nevertheless consider whether or not this error was harmless beyond a reasonable doubt. 352 F. Supp. 270 Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We have read the transcript of petitioner's trial and conclude th......
  • ESTATE OF MAINZER v. Commissioner, Docket No. 16564-80.
    • United States
    • United States Tax Court
    • February 8, 1983
    ...the parties intended to become husband and wife and thereafter lived as husband and wife. Kelly v. Metropolitan Life Insurance Company, 352 F. Supp. 270 (S.D.N.Y. 1972). In Haffner's Estate, supra, the parties were ceremonially married at a time each had an undivorced living spouse. Neverth......
3 cases
  • U.S. v. Jarvison, No. 04-2093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 23, 2005
    ...community to be married. Lowery, supra at 405-06; In re Ketchum, 2 Navajo Rptr. 102, 104-105 citing Kelly v. Metropolitan Life Ins. Co., 352 F.Supp. 270 (S.D.N.Y.1972) (listing essential features of common law marriage), and Meister v. Moore, 96 U.S. (6 Otto) 76, 24 L.Ed. 826 (1878) (decidi......
  • Tucker v. Johnson, Civ. A. No. 37553.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • December 22, 1972
    ...was inadmissible at petitioner's trial, we must nevertheless consider whether or not this error was harmless beyond a reasonable doubt. 352 F. Supp. 270 Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We have read the transcript of petitioner's trial and conclude th......
  • ESTATE OF MAINZER v. Commissioner, Docket No. 16564-80.
    • United States
    • United States Tax Court
    • February 8, 1983
    ...the parties intended to become husband and wife and thereafter lived as husband and wife. Kelly v. Metropolitan Life Insurance Company, 352 F. Supp. 270 (S.D.N.Y. 1972). In Haffner's Estate, supra, the parties were ceremonially married at a time each had an undivorced living spouse. Neverth......

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