The opinion of the court was delivered by: FOLLMER
This is an action brought under Section 205 of the Social Security Act, 42 U.S.C.A. § 405, to review the action of the Social Security Board.
The claimants are the illegitimate minor children of Aloysius V. Mayers, deceased, a wage earner who died on November 28, 1948, domiciled in Pennsylvania, a fully insured individual under the Social Security Act, and live with their mother, Sadie E. Mayers, who brings this action as their Guardian ad litem. Sadie E. Mayers, formerly known as Sadie E. Sterner Street, in 1919 married one Frank Street, who deserted her in January, 1925. This marriage was never dissolved and Frank Street was still living at the time of the death of Aloysius V. Mayers.
Late in 1925 or early in 1926, Sadie E. Sterner Street went to live with Aloysius V. Mayers, became known as his wife, assumed his name, lived continuously with him in the relationship of husband and wife until his death in 1948, and bore him three children, the two claimants and another son, Aloysius V. Mayers, Jr., who is more than twenty-one years of age.
At the time Sadie and Aloysius began living together both knew she was not free to marry, she having told him of her prior marriage to Street and that she had not been divorced from him. During their twenty some years of cohabitation Sadie and Aloysius were recognized by their friends and acquaintances as the mother and father, respectively, of all the children. At all times Aloysius recognized the claimants as his children, supporting them and aiding in their rearing and training.
The sole issue for determination here might be stated as follows:- Are the illegitimate children (unmarried and under the age of 18) of a male wage earner who died domiciled in Pennsylvania, eligible for 'child's insurance benefits' under the Social Security Act, where the deceased wage earner at all times had recognized them as his own and supported them, and they and their mother had lived with him as part of his family?
Section 202(c) of the Social Security Act, as amended in 1939, 42 U.S.C.A. § 402 (c)
, which provides for 'child's insurance benefits', reads as follows:
'(1) Every child (as defined in section 209(k) of an individual entitled to primary insurance benefits, or of an individual who died a fully or currently insured individual (as defined in section 209(g) and (h) after December 31, 1939, if such child (A) has filed application for child's insurance benefits, (B) at the time such application was filed was unmarried and had not attained the age of 18, and (C) was dependent upon such individual at the time such application was filed, or, if such individual has died, was dependent upon such individual at the time of such individual's death, shall be entitled to receive a child's insurance benefit * * * .
'(3) A child shall be deemed dependent upon a father or adopting father, or to have been dependent upon such individual at the time of the death of such individual, unless, at the time of such death, or, if such individual was living, at the time such child's application for child's insurance benefits was filed, such individual was not living with or contributing to the support of such child and-
'(A) such child is neither the legitimate nor adopted child of such individual, or
'(B) such child had been adopted by some other individual, or
'(C) such child, at the time of such individual's death, was living with and supported by such child's stepfather.'
Section 209(k) of the Act, as amended in 1946, 60 Stat. 988, 42 U.S.C. 1946 Ed., § 409(k)
, reads as follows: '(k) The term 'child' means (1) the child of an individual, and (2) in the case of a living individual, a stepchild or adopted child who has been such stepchild or adopted child for thirty-six months immediately preceding the month in which application for child's benefits is filed, and (3) in the case of a deceased individual, a stepchild or adopted child who was such stepchild or adopted child for twelve months immediately preceding the month in which such individual died.'
Section 209(m) of the Act, as amended in 1939, 42 U.S.C.A. § 409(m),
reads as follows: '(m) In determining whether an applicant is the wife, widow, child, or parent 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 by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State, by the courts of the ...