Before BIGGS, MARIS and KALODNER, Circuit Judges.
This case involves the right of the plaintiff, Belle Sherman, to a widow's current insurance benefit under Section 202(e)(1)*fn1 of the Social Security Act which she claims as the widow of Berthold A. Sherman, a deceased insured wage earner. The facts as found by the Social Security Board are as follows:
On September 24, 1929 the plaintiff, then Belle Samisch, and one Louis Teitelbaum were legally married by ceremony in Brooklyn, New York. At that time they were both residents of New York and were competent to contract the marriage. The plaintiff separated from Teitelbaum in May, 1930, and in 1934 she instituted divorce proceedings against him in the Court of First Instance of the First Judicial District of the State of Morelos at Cuernavaca, Mexico. On July 28, 1934 the Mexican court issued to the plaintiff a final decree of divorce from Teitelbaum on the grounds of cruelty and incompatability of temperament. Neither party to the Mexican divorce had ever set foot in that country at any time prior to the institution of the divorce proceedings nor has either been in Mexico at any subsequent time. Both of them were permanent residents of the State of New York from the time of their marriage until September, 1937. Teitelbaum remained a resident of New York until about May, 1942 and on January 7, 1946, when his deposition was taken by the Board, he was a resident of the District of Columbia. On August 19, 1935 the plaintiff and Berthold A. Sherman entered into a purported marriage at Greenwich, Connecticut, the ceremony being performed by a Justice of the Peace. Following this purported marriage the plaintiff and Sherman continued to reside in the State of New York until September, 1937 when they moved to New Jersey, where they resided until Sherman's death on April 23, 1944.
Following Sherman's death the plaintiff made claim as his widow for widow's current insurance benefits under Section 202(e)(1) of the Social Security Act. Her claim was denied by a referee of the Social Security Board and, on review, by the Appeals Council of the Board. The referee and Appeals Council held that the plaintiff's Mexican divorce was absolutely void, that her subsequent marriage to the wage earner Sherman was, therefore, void ab initio, and that since she was not in law the wife of Sherman at the time of his death she was not entitled as his widow to claim a widow's current insurance benefit under Section 202(e)(1) of the Act.
The plaintiff, being aggrieved by the Board's decision filed her complaint in the district court for the district of New Jersey under Section 205(g) of the Act.*fn2 Upon a motion for a summary judgment the district court reversed the decision of the Social Security Board and ordered the Federal Security Administrator*fn3 to certify the plaintiff's name as entitled to widow's current insurance payments. 70 F.Supp. 758. The present appeal by the Federal Security Agency followed. In this court the appellant urges that the district court erred in holding that the plaintiff must be regarded as Sherman's widow within the meaning of the Social Security Act.
Section 209(j) of the Social Security Act provides: "The term 'widow' * * * means the surviving wife of an individual who either (1) is the mother of such individual's son or daughter, or (2) was married to him prior to the beginning of the twelfth month before the month in which he died."*fn4
The Act further provides, in Section 209(m): "In determining whether an applicant is the * * * widow, * * * of a fully insured or currently insured individual for purposes of this title, the board shall apply such law as would be applied in determining the devolution of intestate personal property * * *, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, * * *. Applicants who according to such law would have the same status relative to taking intestate personal property as a * * * widow, * * * shall be deemed such."*fn5
It will be seen from the subsection of the Social Security Act last quoted that the Board was required to determine the question whether the plaintiff was the widow of the wage earner, Sherman, by referring to the law of New Jersey which would be applicable to the devolution of Sherman's intestate personal property. In other words, the correctness of the Board's decision must turn upon whether under the law of New Jersey the plaintiff would be recognized as the widow of Sherman for the purpose of taking as his widow personal property from his estate.
Turning to the consideration of this question we begin with the proposition, laid down in New Jersey as recently as June 19, 1947, that the Orphans Court, which in that state is the court empowered to determine the devolution of intestate personal property, will consider and determine the validity of a divorce decree obtained in another state when it is necessary for it to do so in order to pass upon the rights of a person making claim as widow to property of a decedent. Vaughan v. Vaughan, Monmouth Co. O.C., 1947, 53 A.2d 625, 25 N.J.Misc. 340.
In the case just cited the Orphans Court was called upon to determine which of two persons claiming to be a decedent's widow was entitled to an assignment of dower in his lands. The question turned upon whether a Florida divorce decree obtained by the decedent against one of the claimants was valid. In deciding that the court had the right to consider this question Judge Giordano said at page 627 of 53 A.2d at page 343 of 25 N.J.Misc.:
"The petitioners must show that they are entitled to dower and every element in the proof therefor becomes a necessary element of the cause, and the cause is one which has been expressly given to the Orphans' Court.
"The decision in this case necessarily depends on whether full faith and credit should be given to the alleged Florida decree and that question can not be answered until inquiry is made to learn whether that decree was void or valid. The validity of the alleged Florida decree is therefore a question which must necessarily be decided in reaching a conclusion on a matter entrusted to this Court, and there is ample authority that the court may determine questions of law and equity, the decision of which is necessary to the decision of some other matter expressly committed to it, * * *."
It is perfectly clear that the courts of New Jersey, when the question is presented to them for decision, will treat as absolutely void a divorce granted by a court in a foreign state in which neither of the parties was a bona fide resident. Lister v. Lister, Ch. 1915, 86 N.J.Eq. 30, 97 A. 170; Hollingshead v. Hollingshead, Ch. 1920, 91 N.J.Eq. 261, 110 A. 19; Reik v. Reik, Ch. 1932, 109 N.J.Eq. 615, 158 A. 519, affirmed 112 N.J.Eq. 234, 163 A. 907; Knapp v. Knapp, Ch. 1934, 173 A. 343, 12 N.J.Misc. 599; Newton v. Newton, Ch. 1935, 179 A. 621, 13 N.J.Misc. 613; Greenspan v. Greenspan, Ch. 1941, 18 A.2d 283, 19 N.J.Misc. 153; Giresi v. Giresi, Err. & App. 1945, 137 N.J.Eq. 336, 44 A.2d 345. In so holding the New Jersey Courts are in accord with the settled rule in this country that jurisdiction in divorce is founded solely on domicile. Bell v. ...