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TRATHEN v. UNITED STATES

April 20, 1951

TRATHEN
v.
UNITED STATES et al.



The opinion of the court was delivered by: BARD

This is an action brought under the National Service Life Insurance Act *fn1" and the World War Veterans' Act *fn2" to recover the proceeds payable under a National Service Life Insurance contract. It is now before me on plaintiff's motion for summary judgment and on defendant's motion for summary judgment in favor of additional defendant.

Plaintiff is Stephen Trathen, a resident of Philadelphia, Pennsylvania, and the father of Henry R. Trathen, deceased. Defendant is the United States of America. Additional defendant, brought in by the United States, is Mary Trathen Kerrigan, a resident of Girardville, Pennsylvania.

 On April 20, 1935 Henry R. Trathen was ceremoniously married to Mary Trathen, now Mary Trathen Kerrigan. On or about June 1, 1943 and on or about November 10, 1943 Henry R. Trathen entered into contracts of National Service Life Insurance with the United States, each in the amount of $ 5,000, and in each contract he named his mother, Catherine Wills Trathen, as his sole beneficiary. Henry R. Trathen duly performed all the conditions required of him by this contract of insurance. On April 12, 1945, while a member of the armed forces of the United States, Henry R. Trathen was killed in action in Germany. No children were born of the marriage between Henry R. Trathen and Mary Trathen. On May 26, 1945 Mary Trathen was ceremoniously married to Martin Kerrigan. *fn3"

 After the death of Henry R. Trathen, the proceeds of the National Service Life Insurance contract were paid by the Veterans' Administration to Catherine Wills Trathen in certain installments. Catherine Wills Trathen died on May 25, 1949, before all the installments had been paid. Thereafter, and until May 1, 1950 when a 'suspend payment' order was issued, $ 30.15 was paid monthly to Mary Trathen Kerrigan, the person thought by the Veterans' Administration to be entitled to the balance of the proceeds because no contingent beneficiary had been named by Henry R. Trathen. *fn4" Monthly installments of $ 30.15 are payable through December 12, 1958 and a final installment of $ 25.25 is payable on January 12, 1959. *fn4"

 The sole question in this case is whether, under the above facts, Mary Trathen Kerrigan is Henry R. Trathen's 'widow' within the purview of Section 602(h)(3) of the National Service Life Insurance Act. *fn5"

 Section 602(h)(3) provides:

 '(3) Any installments certain of insurance remaining unpaid at the death of any beneficiary shall be paid in equal monthly installments in an amount equal to the monthly installments paid to the first beneficiary, to the person or persons then in being within the classes hereinafter specified and in the order named, unless designated by the insured in a different order-

 '(A) to the widow or widower of the insured, if living;

 '(B) if no widow or widower, to the child or children of the insured, if living, in equal shares;

 '(C) if no widow, widower, or child, to the parent or parents of the insured who last bore that relationship, if living, in equal shares; * * *.' (Emphasis added.)

 There is no dispute over the fact that as of the date of Henry R. Trathen's death, Mary Trathen Kerrigan was his lawful widow.

 Defendant and additional defendant contend that Mary Trathen Kerrigan's right to the proceeds became fixed and vested as of that date, and that subsequent events have no effect whatsoever.

 Plaintiff contends that under the wording of the statute Mary Trathen Kerrigan's right to the proceeds did not vest until she was entitled to receive them, that when she was entitled to receive them, that when she remarried one and one-half months after Henry R. Trathen's death she lost her status as his widow, and that therefore ...


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