B-145050, AUG. 16, 1961

B-145050: Aug 16, 1961

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LETA NIMBLETT: REFERENCE IS MADE TO LETTER OF MAY 12. YOUR CLAIM FOR THE DEATH GRATUITY WAS DISALLOWED ON THE BASIS THAT UNDER CHAPTER 208. THERE WERE INCLUDED IN THAT SETTLEMENT THE REASONS WHY PAYMENT TO YOU. WAS NOT AUTHORIZED. YOUR ATTORNEYS HAVE DIRECTED OUR ATTENTION TO CHAPTER 207. OF THE ANNOTATED LAWS OF MASSACHUSETTS AND HAVE REQUESTED US TO CONSIDER THE CASE OF ARCAND V. THEY HAVE CITED THE CASE OF STAMPER V. WHICH WAS QUOTED IN THE ATTORNEYS' LETTER. IS AS FOLLOWS: "IF A PERSON. DURING THE LIFETIME OF A HUSBAND OR WIFE WITH WHOM THE MARRIAGE IS IN FORCE. 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.

B-145050, AUG. 16, 1961

TO MRS. LETA NIMBLETT:

REFERENCE IS MADE TO LETTER OF MAY 12, 1961, FROM MORRILL AND PETERSON, ATTORNEYS AT LAW, WRITTEN ON YOUR BEHALF, IN EFFECT REQUESTING RECONSIDERATION OF OFFICE SETTLEMENT OF APRIL 4, 1961, WHICH DISALLOWED YOUR CLAIM FOR THE SIX-MONTHS' DEATH GRATUITY PAYMENT AS WIDOW OF WALTER H. NIMBLETT WHO DIED SEPTEMBER 4, 1960, WHILE SERVING AS BT3,UNITED STATES NAVY.

YOUR CLAIM FOR THE DEATH GRATUITY WAS DISALLOWED ON THE BASIS THAT UNDER CHAPTER 208, SECTION 24, AND CHAPTER 207, SECTION 10, OF THE ANNOTATED LAWS OF MASSACHUSETTS, YOUR MARRIAGE TO THE DECEDENT APPEARS TO BE NULL AND VOID AND THEREFORE YOU MAY NOT BE CONSIDERED TO BE THE LAWFUL SURVIVING SPOUSE OF THE DECEDENT. THERE WERE INCLUDED IN THAT SETTLEMENT THE REASONS WHY PAYMENT TO YOU, AS MOTHER AND NATURAL GUARDIAN OF WALTER H. NIMBLETT, JR., WAS NOT AUTHORIZED.

IN THE LETTER OF MAY 12, 1961, YOUR ATTORNEYS HAVE DIRECTED OUR ATTENTION TO CHAPTER 207, SECTION 6, OF THE ANNOTATED LAWS OF MASSACHUSETTS AND HAVE REQUESTED US TO CONSIDER THE CASE OF ARCAND V. FLEMING (1960), 185 F.SUPP. 22, WHICH INTERPRETS THAT SECTION. IN ADDITION, THEY HAVE CITED THE CASE OF STAMPER V. STANWOOD (1959), 339 MASS. 549, 159 N.E.2D 865, AS SUPPORTING YOUR RIGHT TO A FURTHER DETERMINATION BY OUR OFFICE AS TO YOUR ENTITLEMENT TO THE GRATUITY PAY. CHAPTER 207, SECTION 6, WHICH WAS QUOTED IN THE ATTORNEYS' LETTER, IS 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 THERETO LIVE TOGETHER THEREAFTER 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 THIS FORMER MARRIAGE HAD BEEN ANNULLED BY A DIVORCE, OR WITHOUT KNOWLEDGE OF SUCH FORMER MARRIAGE, 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.'

AT THE TIME OF THE SETTLEMENT OF YOUR CLAIM OUR OFFICE WAS AWARE OF THE ABOVE-QUOTED PROVISION OF LAW. AFTER DUE CONSIDERATION WAS GIVEN TO SUCH PROVISION WITH RELATION TO THE FACTS APPEARING OF RECORD AND UPON A CAREFUL READING AND ANALYSIS OF THE NUMEROUS MASSACHUSETTS COURT CASES IN INTERPRETATION THEREOF, IT WAS DETERMINED THAT THAT SECTION WAS NOT FOR APPLICATION IN YOUR CASE. UNDER THAT LAW ONE OF THE REQUISITES IS THAT THE PARTIES CONTINUE TO LIVE TOGETHER AS HUSBAND AND WIFE IN GOOD FAITH ON THE PART OF ONE OF THEM AFTER THE IMPEDIMENT TO THEIR MARRIAGE HAS BEEN REMOVED BY THE DEATH OR DIVORCE OF THE OTHER PARTY TO THE FORMER MARRIAGE. HOWEVER, IT DOES NOT APPEAR THAT WALTER H. NIMBLETT AND YOU LIVED TOGETHER AS HUSBAND AND WIFE AFTER THE REMOVAL OF THE IMPEDIMENT TO YOUR MARRIAGE, THAT IS, AFTER SEPTEMBER, 1958, WHEN THE DIVORCE DECREE NISI OBTAINED BY MRS. ROSE A. NIMBLETT, FROM WALTER H. NIMBLETT ON MARCH 14, 1958, BECAME FINAL. IN THIS CONNECTION, THE RECORD SHOWS THAT ON JUNE 3, 1958, WALTER H. NIMBLETT ENLISTED IN THE UNITED STATES NAVY; THAT IN AUGUST 1958 HE FILED IN THE WORCESTER PROBATE COURT, WORCESTER, MASSACHUSETTS, A LIBEL FOR THE ANNULMENT OF HIS MARRIAGE TO YOU, AND THAT HE LIVED WITH YOU ONLY A FEW DAYS. IN SUCH CIRCUMSTANCES, THERE APPEARS TO BE NO LEGAL BASIS TO RECOGNIZE YOU AS THE WIDOW OF WALTER H. NIMBLETT WITHIN THE INTENT AND PURPOSES OF CHAPTER 207, SECTION 6, OF THE ANNOTATED LAWS OF MASSACHUSETTS.

IN THE CASE OF TURNER V. TURNER, 189 MASS. 373, 75 N.E. 612, THE COURT, IN CONSTRUING SECTION 6, STATED, AS MATERIAL HEREIN, AS FOLLOWS:

"ITS PURPOSE IS TO PROVIDE THAT THE MARRIAGE CEREMONY, ILLEGAL AT FIRST BY REASON OF THE EXISTENCE OF AN IMPEDIMENT, SHALL BE REGARDED AS TAKING PLACE AT THE TIME THE IMPEDIMENT IS REMOVED, AND AS COVERING ALL MARITAL RELATIONS THEREAFTER ASSUMED IN GOOD FAITH. IT IS IMMATERIAL WHETHER THE REMOVAL OF THE IMPEDIMENT IS KNOWN OR UNKNOWN. WHETHER KNOWN OR NOT, THE MARRIAGE CEREMONY BECOMES OPERATIVE UPON THE REMOVAL, IF THE PARTIES CONTINUE TO LIVE TOGETHER AS HUSBAND AND WIFE IN GOOD FAITH AT LEAST ON THE PART OF ONE OF THEM. SUCH A CONSTRUCTION OF THE STATUTE IS NOT ONLY IN ACCORDANCE WITH ITS PLAIN READING, BUT IT CARRIES OUT THE REAL BONA FIDE INTENTION OF THE INNOCENT PARTY TO CONTRACT A VALID MARRIAGE. UPON THE REMOVAL OF THE IMPEDIMENT AND THE SUBSEQUENT COHABITATION IN GOOD FAITH, THE RELATION BECOMES SUCH AS THE INNOCENT PARTY SUPPOSED IT TO BE. AND SUCH A RELATION, THUS ONCE SANCTIONED IN THE LAW, LEGITIMATIZES THE CHILDREN AND LEADS TO THE PROTECTION OF THE MORAL WELFARE OF THE COMMUNITY.'

ALSO PERTINENT, IN THAT RESPECT, IS THE CASE OF HOPKINS V. HOPKINS,287 MASS. 542, 192 N.E. 145, WHEREIN THE COURT, IN PART, HELD AS FOLLOWS:

"THE FACTS IN OUR OPINION BRING THE CASE AT BAR WITHIN THE PROTECTION OF SECTION 6 AND THE SWEEP OF THE PRINCIPLE OF TURNER VS TURNER, 189 MASS. 373, 75 N.E. 612, 109 AM.ST.REP. 643. THERE WAS THE FORM OF A LEGAL MARRIAGE ENTERED INTO IN AN HONEST BELIEF IN ITS BINDING FORCE FOLLOWED BY COHABITATION IN LIKE GOOD FAITH, BY ONE OF THE PARTIES, AND THERE WAS A CONTINUATION OF THE COHABITATION ON THE FAITH OF THAT FORM OF LEGAL MARRIAGE AFTER THE REMOVAL OF THE IMPEDIMENT.'

WE DO NOT THINK THE CASES OF ARCAND V. FLEMING AND STAMPER V. STANWOOD, SUPRA, ARE RELEVANT TO YOUR CASE IN VIEW OF THE DISSIMILAR FACTUAL SITUATIONS INVOLVED THEREIN, THAT IS, THE COURT HELD IN EACH OF THE CASES THAT THE WIFE HAD ENTERED INTO THE MARRIAGE IN GOOD FAITH AND THAT AFTER THE REMOVAL OF THE IMPEDIMENT SHE CONTINUED TO LIVE WITH THE OTHER MARRIAGE PARTNER AS HUSBAND AND WIFE.

ACCORDINGLY, ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND UPON REVIEW IT IS SUSTAINED.