Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
The question presented is whether the surviving spouse of a deceased soldier who remarries subsequent to his death is a "widow" within the meaning of Section 602(h)(3) of the National Service Life Insurance Act.*fn1
The facts giving rise to the appeal are as follows: On April 20, 1935, Henry R. Trathen was married to Mary Trathen, now Mary Trathen Kerrigan. In June, 1943, and again in November, 1943, Henry, while in the armed services, entered into contracts of National Service Life Insurance with the United States, each in the amount of $5,000. Catherine Wills Trathen, Henry's mother, was designated beneficiary of both policies. No contingent beneficiary was named. On April 12, 1945, Henry was killed in action in Germany. No children were born of the marriage between Henry and Mary Trathen. On May 26, 1945, Mary Trathen was married to Martin Kerrigan.
After Henry's death the Veterans' Administration paid monthly installments under the policies to Catherine Wills Trathen, until she died on May 25, 1949. Thereafter, installments were paid to Mary Trathen Kerrigan, the person determined by the Veterans' Administration to be entitled to the balance of the proceeds in the absence of a named contingent beneficiary.*fn2
The plaintiff, Stephen Trathen, was the father of the insured.*fn3 He commenced the present action against the United States on March 28, 1950, claiming that he was entitled to the proceeds of the policies from and after the death of Catherine Wills Trathen, the sole designated beneficiary. The United States joined Mary Trathen Kerrigan as an additional defendant under Rules 13(h) and 22 of the Federal Rules of Civil Procedure, 28 U.S.C. At the close of all the pleadings, the plaintiff moved for summary judgment under Rule 56; similarly, the United States moved for summary judgment in favor of Mary Trathen Kerrigan. The District Judge, in an opinion reported at 96 F.Supp. 809, ruled that Mary Trathen Kerrigan was not entitled to the proceeds of the policies because of her remarriage during the lifetime of the designated beneficiary. Accordingly, the judgment was entered in favor of Stephen Trathen against the United States for all installments due since the date of death of Catherine Wills Trathen. Both the United States and Mary Trathen Kerrigan appealed.
We are of the opinion that the judgment of the District Court must be reversed.
Section 602(h)(3) of the National Service Life Insurance Act provides that any installments of insurance remaining unpaid at the date of death of the beneficiary named in the policy are to be paid as follows:
"* * * 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;"
The learned District Judge interpreted the phrase "then in being" in Section 602(h)(3) as requiring the surviving spouse of an insured to remain unremarried in order to be eligible under this section; and, accordingly, held that Mary Trathen lost her status as Henry Trathen's "widow" by virtue of her remarriage shortly after his death.
We are in agreement with the District Judge that "then" refers to the date of death of the named beneficiary.*fn4 However, we do not subscribe to the view that a surviving spouse who has remarried prior to that date is no longer "in being" within the meaning of Section 602(h)(3). The requirement that a claimant be "then in being" means only that the claimant must be alive in order to take under the section; it has no reference to marital status. In our view, a surviving spouse qualifies under Section 602(h)(3) as ...