B-45639, DECEMBER 19, 1944, 24 COMP. GEN. 460

B-45639, DECEMBER 19, 1944, 24 COMP. GEN. 460

VALIDITY OF MARRIAGE BY MAIL A CONTRACT OF MARRIAGE, THE VALIDITY OF WHICH IS TO BE DETERMINED UNDER PENNSYLVANIA LAW, ENTERED INTO BY MAIL BETWEEN A WOMAN RESIDING IN THIS COUNTRY AND AN ARMY OFFICER OVERSEAS SUBSEQUENT TO JANUARY 27, 1944, THE DATE OF THE DECISION OF THE SUPERIOR COURT OF PENNSYLVANIA TO THE EFFECT THAT A PROPER MARRIAGE LICENSE MUST BE OBTAINED BEFORE ANY MARRIAGE, CEREMONIAL OR COMMON-LAW, COULD BE ENTERED INTO IN THAT STATE, WILL NOT BE RECOGNIZED BY THIS OFFICE AS ESTABLISHING A VALID MARRIAGE RELATIONSHIP FOR PURPOSES OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR DEPENDENTS (LAWFUL WIFE), IN THE ABSENCE OF A SHOWING THAT THE PARTIES OBTAINED A MARRIAGE LICENSE. 23 COMP. GEN. 972, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR L. E. HOWARD, JR., U.S. ARMY, DECEMBER 19, 1944:

BY ENDORSEMENT OF NOVEMBER 9, 1944 ( SPFEI 245.81 ( MILLER, CHARLES J.) MAJOR), THE ACTING FISCAL DIRECTOR, ARMY SERVICE FORCES, TRANSMITTED TO THIS OFFICE LETTER DATED SEPTEMBER 25, 1944, FROM FIRST LIEUTENANT J. C. SALADINO, F.D., U.S. ARMY, AGENT FINANCE OFFICER, REQUESTING DECISION AS TO WHETHER PAYMENT IS LEGALLY AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF MAJOR CHARLES J. MILLER, MEDICAL CORPS, AUS, COVERING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD AUGUST 22 TO SEPTEMBER 30, 1944.

IN SUPPORT OF THE SAID VOUCHER, THERE WAS SUBMITTED A COPY OF A "CONTRACT OF MARRIAGE" AS FOLLOWS: GEORGIA FULTON COUNTY

THIS CONTRACT OF MARRIAGE MADE AND ENTERED INTO AT ATLANTA, FULTON COUNTY, GEORGIA, ON THIS, THE 22ND DAY OF AUGUST, 1944, BY AND BETWEEN CHARLES JOSEPH MILLER, OF PHILADELPHIA, PHILADELPHIA COUNTY, PENNSYLVANIA, NOW IN THE MILITARY SERVICE OVERSEAS, AND GERTRUDE KAUFMAN, OF PHILADELPHIA, PHILADELPHIA COUNTY, PENNSYLVANIA.

THE PARTIES HERETO DESIRING TO ENTER INTO A PRESENT AGREEMENT OF MARRIAGE, AND MUTUALLY CONSENTING EACH WITH THE OTHER TO BECOME HUSBAND AND WIFE, DO COVENANT AND AGREE, AS FOLLOWS:

I, CHARLES JOSEPH MILLER DO HEREBY SOLEMNLY AGREE TO TAKE GERTRUDE KAUFMAN AS MY WEDDED WIFE, TO LIVE TOGETHER IN THE HOLY STATE OF MATRIMONY, TO LOVE, COMFORT, HONOR, CHERISH, AND KEEP HER IN SICKNESS AND IN HEALTH, UNTIL DEATH DO US PART.

I, GERTRUDE KAUFMAN, DO HEREBY SOLEMNLY AGREE TO TAKE CHARLES JOSEPH MILLER AS MY WEDDED HUSBAND, TO LIVE TOGETHER IN THE HOLY STATE OF MATRIMONY, TO LOVE, COMFORT, HONOR, CHERISH, AND KEEP HIM, IN SICKNESS AND IN HEALTH, AND FORSAKING ALL OTHERS, KEEP HIM ONLY, UNTIL DEATH DO US PART.

IN WITNESS WHEREOF, THE PARTIES HERETO HAVE SET THEIR HANDS, THE DAY AND YEAR FIRST ABOVE WRITTEN.

(S) NELSON M. HOFFMAN, (S) CHARLES JOSEPH MILLER,

CAPT CH C. CHARLES JOSEPH MILLER.

(S) DAVID P. SCHLAEGER, (S) GERTRUDE KAUFMAN,

ST LT MED ADM C. GERTRUDE KAUFMAN.

WITNESSES AS TO SIGNATURE OF

CHARLES JOSEPH MILLER.

(S) NATHAN AS BELL, M.D.

(S) BENIA C. WRIGHT,

WITNESSES AS TO SIGNATURE OF

GERTRUDE KAUFMAN.

PERSONALLY APPEARED BEFORE ME THE UNDERSIGNED OFFICER OF THE ARMY OF THE UNITED STATES, NOW ON ACTIVE DUTY IN THE UNITED STATES SERVICE OVER SEAS WHO IS AUTHORIZED TO TAKE ACKNOWLEDGMENT AND ACT AS A NOTARY UNDER THE PROVISIONS OF THE ACT OF DECEMBER 24, 1942 ( AW 114, AS AMENDED BY PUBLIC LAW 800, 77TH CONGRESS), MAJ. CHARLES JOSEPH MILLER, KNOWN TO ME TO BE A PERSON SUBJECT TO MILITARY LAW AS DEFINED IN THE ACT OF JUNE 4, 1920 ( A.W. 2; 41 STAT. 787; 10 U.S.C. 1473) AND KNOWN TO ME TO THE PERSON DESCRIBED IN THE FOREGOING INSTRUMENT WHICH IS DATED THE 22ND DAY OF AUGUST, 1944, AND HERETO ANNEXED, AND WHO, FIRST BEING DULY SWORN, ACKNOWLEDGED THAT HE HAD SIGNED SAID INSTRUMENT AFTER HE HAD READ THE CONTENTS THEREOF AND ACKNOWLEDGED TO ME THAT HE HAD EXECUTED THE SAID INSTRUMENT AS HIS FREE AND VOLUNTARY ACT AND DEED FOR THE PURPOSES INTENDED THEREBY.

I DO FURTHER CERTIFY THAT THE AFORESAID ACKNOWLEDGMENT WAS TAKEN BY ME WHILE SERVING WITH THE ARMY OF THE UNITED STATES AT A PLACE THE EXACT LOCATION OF WHICH CANNOT NOW BE DISCLOSED BECAUSE OF THE MILITARY NECESSITIES OF THE SITUATION.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS 4TH DAY OF SEPTEMBER, 1944.

(S) C. STUART TUPPER

ST LT. MED. ADM. C.,

SUMMARY COURT. GEORGIA FULTON COUNTY

PERSONALLY APPEARED BEFORE ME, A NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE, GERTRUDE KAUFMAN, WHO DID ACKNOWLEDGE THAT SHE DID SIGN THE FOREGOING MARRIAGE CONTRACT, AND THAT THE SAME IS HER FREE ACT AND DEED.

IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND OFFICIAL SEAL AT ATLANTA THIS 22D DAY OF AUGUST, 1944.

(SEAL) (S) J. KURT HOLLAND,

NOTARY PUBLIC, GEORGIA STATE AT LARGE,

MY COMMISSION EXPIRES OCTOBER 14, 1945.

THE FACTS PRESENTED HEREIN ARE SOMEWHAT ANALOGOUS TO THOSE CONSIDERED IN DECISION OF THIS OFFICE DATED JUNE 24, 1944, B-41254, 23 COMP. GEN. 972, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

A CONTRACT OF MARRIAGE ENTERED INTO BY MAIL BETWEEN AN ARMY OFFICER STATIONED OVERSEAS AND HIS FIANCEE RESIDING IN THIS COUNTRY--- BOTH OF WHOM ARE DOMICILED IN A STATE ( PENNSYLVANIA) WHERE COMMON-LAW MARRIAGES ARE VALID--- WILL BE CONSIDERED BY THIS OFFICE, FOR PURPOSES OF THE OFFICER'S CLAIM FOR INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), AS ESTABLISHING A MARRIAGE VALID UNDER THE LAWS OF PENNSYLVANIA.

HOWEVER, THE TWO CASES ARE DISTINGUISHABLE IN THAT THE SAID DECISION OF JUNE 24, 1944, INVOLVED A CONTRACT BETWEEN TWO PERSONS DOMICILED IN THE STATE OF PENNSYLVANIA, WHEREAS IN THE PRESENT CASE, THE CONTRACT WAS SIGNED AND ACKNOWLEDGED BY ONE OF THE PARTIES THERETO IN THE STATE OF GEORGIA. ALSO, THE SAID DECISION OF JUNE 24, 1944, CONCERNED AN AGREEMENT MADE PRIOR TO THE DECISION ON JANUARY 27, 1944, OF THE SUPERIOR COURT OF PENNSYLVANIA IN THE CASE OF FISHER V. SWEET AND MCCLAIN, ET AL., 154 PA. SUPER. 216, 35 A.2D 756, WITH RESPECT TO THE NECESSITY OF OBTAINING A MARRIAGE LICENSE BEFORE ANY VALID MARRIAGE, CEREMONIAL OR COMMON-LAW, COULD BE ENTERED INTO IN THAT STATE.

THE GENERAL RULE IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT IS CONSUMMATED, AND, IF VALID THERE, IT WILL BE HELD VALID EVERYWHERE, PROVIDED IT IS NOT IN CONTRAVENTION OF POSITIVE LAW OR PUBLIC POLICY. CONVERSELY, A MARRIAGE INVALID BY THE LEX LOCI CONTRACTUS WILL BE HELD INVALID WHEREVER ITS VALIDITY IS QUESTIONED IN A PROPER COURT. RESTATEMENT, CONFLICT OF LAWS, SECTION 121, ET SEQ., 38 C.J. 1276, 1277 AND NOTES. ALSO, BASED ON THE COMMONLY ACCEPTED DOCTRINE THAT THE VALIDITY AND EFFECT OF A MARRIAGE CONTRACT ARE DETERMINED BY THE PRINCIPLES APPLICABLE TO CIVIL CONTRACTS GENERALLY, IT WOULD APPEAR THAT THE PLACE OF MAKING A CONTRACT OF MARRIAGE IS THE PLACE WHERE THE LAST ACT NECESSARY FOR ITS FORMATION IS DONE. SEE, WITH RESPECT TO CONTRACTS GENERALLY, CLARK V. BELT, 223 F. 573; OVERCASH V. YELLOW TRANSIT CO., 180 S.W.2D 678; TOON, ET AL. V. DAVID G. EVANS COFFEE CO., ET AL., 103 S.W.2D 533; ADAMS V. CONTINENTAL LIFE INS. CO., ET AL., 101 S.W.2D 75; TEXAS EMPLOYERS' INS. ASS-N V. MOORE, 56 S.W.2D 652; FITZGERALD V. ECONOMIC LABORATORY, INC., ET AL., 12 N.W.2D 621; HOUSE V. LEFEBVRE, 303 MICH. 207, 6 N.W.2D 487; RESTATEMENT CONTRACTS, SECTION 74; RESTATEMENT, CONFLICT OF LAWS, SECTION 311; WILLISTON ON CONTRACTS, REVISED EDITION, VOL. 1, SECTION 97; 17 C.J.S. 813, SECTION 356; 15 ID. 883, SECTION 11 (B). HOWEVER, IT HAS BEEN RECOGNIZED THAT THE VALIDITY OF A CONTRACT OF MARRIAGE ENTERED INTO BY A SOLDIER WITHIN THE LINES OF THE ARMY WHILE SERVING ABROAD IS GOVERNED BY THE LAW OF HIS DOMICILE. SEE 23 COMP. GEN. 972, AND CASES CITED.

THE EVIDENCE SUBMITTED WITH YOUR LETTER INDICATES THAT THE CONTRACT HERE INVOLVED IS COMPOSED OF A WRITTEN OFFER TO CONTRACT, SIGNED AND ACKNOWLEDGED BY A WOMAN IN ATLANTA, GEORGIA, ON AUGUST 22, 1944--- AND LATER SENT BY MAIL TO THE OFFICER WHO WAS SERVING IN THE MILITARY SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES--- AND THE OFFICER'S ACCEPTANCE THEREOF ON SEPTEMBER 4, 1944, AT HIS STATION ABROAD. HENCE, IT APPEARS THAT THE SUBJECT CONTRACT OF MARRIAGE CAME INTO BEING WHEN THE OFFICER SIGNED AND ACKNOWLEDGED THE OFFER RECEIVED BY HIM AND THAT ITS VALIDITY IS GOVERNED BY THE LAWS OF PENNSYLVANIA--- THE STATE INDICATED TO BE THE OFFICER'S DOMICILE.

COMMON-LAW MARRIAGES ARE VALID IN PENNSYLVANIA. FITZPATRICK V. MILLER, 129 PA. SUPER. 324, 196 A. 83; STUMP V. STUMP, 111 PA. SUPER. 541, 170 A. 393; COMMONWEALTH V. BOCKES, 103 PA. SUPER. 378, 157 A. 214. HOWEVER, IN THE CASE OF FISHER V. SWEET AND MCCLAIN, ET AL., SUPRA, DECIDED JANUARY 27, 1944, THE SUPERIOR COURT OF PENNSYLVANIA RULED THAT THEREAFTER, IN THE STATE OF PENNSYLVANIA, A MARRIAGE LICENSE MUST BE OBTAINED PURSUANT TO THE EXISTING MARRIAGE LICENSE STATUTES, INCLUDING THE ACT OF MAY 17, 1939, 48 P.S. PAR. 20, ET SEQ., BEFORE ANY VALID MARRIAGE, CEREMONIAL OR COMMON- LAW, CAN BE ENTERED INTO. NO EVIDENCE HAS BEEN FURNISHED WHICH ESTABLISHES THAT SUCH A LICENSE WAS OBTAINED BY THE PARTIES HERE INVOLVED. IN THE ABSENCE OF SUCH EVIDENCE, IT IS AT LEAST DOUBTFUL THAT THE CONTRACT SIGNED BY THE PARTIES, EVEN IF OTHERWISE PROPER, WOULD BE CONSIDERED BY THE COURTS OF PENNSYLVANIA AS ESTABLISHING A VALID MARRIAGE RELATIONSHIP AND, IN VIEW OF THAT DOUBT, IT MAY NOT BE CONCLUDED THAT THE OFFICER IS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) ON THE BASIS OF THE PRESENT RECORD. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH WILL BE RETAINED IN THE FILES OF THIS OFFICE.