incident which might have been occasioned if she met Mrs. Smith there.
Mrs. Smith visited the wage earner at the hospital every day while he was there. She was there at all times during visiting hours and she was with the wage earner at the time he died. The wage earner did not tell Mrs. Smith that their relationship would be terminated, or that they would not continue to live together or that he and his wife were going to live together again.
There never was any court order by which the wage earner was ordered to contribute to the support of his wife. There is no evidence that he contributed to her support. For a number of years the wage earner had been paying the premiums on four industrial life insurance policies on the life of the claimant. The total weekly premiums on these policies amounted to less than one dollar. The wage earner told the claimant that if anything happened to her the proceeds from these policies would take care of her burial expenses.
After the death of the wage earner his family made arrangements for his funeral and burial. He was of the Catholic faith but had not adhered to many of the precepts of his religion for some time prior to his death. Last rites were held according to the Catholic faith and he was interred in a Catholic cemetery.
From this evidence the learned Referee concluded, 'that at the time of the wage earner's death he was not under court order to contribute to the support of his wife, that he did not contribute to her support, that she was not living with the wage earner at the time of his death, that the claimant is not entitled to the benefits for which she applied.'
The record also discloses that, when the wage earner asked his daughter if the claimant would resume living with him, he knew the attitude of the claimant and knew the condition under which she would return. The daughter inquired of her, was told she would on condition that the wage earner cease his meretricious relationship with the other woman, and conveyed the message to her father. The father expressed satisfaction, replying 'That's good', and both mother and daughter testified that it was their understanding that the claimant and the wage earner were going to resume living together.
The Social Security Act, Sec. 402(e)(1) of 42 U.S.C.A., provides:
'The widow * * * of an individual who died a fully insured individual after 1939, if such widow --
'(A) Has not remarried,
'(B) hat attained retirement age,
'(C) has filed application for * * * benefits * * *,
'(D) was living with such individual at the time of his death, and
'(E) is not entitled to old-age insurance benefits * * * shall be entitled to a widow's insurance benefit(s) * * *.'
Claimant has clearly met the requirements of A, B, C, and D of Sec. 402(e) (1). The sole question in this case is whether she is in compliance with the provisions of subparagraph D.
In 1950, Congress broadened the definition of 'widow' and the term 'living with'. Sec. 416(h) of 42 U.S.C.A. provides as follows:
'(1) In determining whether an applicant is the wife, husband, widow, widower, child, or parent of a fully insured or currently insured individual for purposes of this subchapter, the Administrator 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 District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such.
'(2) A wife shall be deemed to be living with her husband if they are both members of the same household, or if she is receiving regular contributions from him toward her support, or he has been ordered by any court to contribute to her support; and a widow shall be deemed to have been living with her husband at the time of his death if they were both members of the same household on the date of his death, or she was receiving regular contributions from him toward her support on such date, or he had been ordered by any court to contribute to her support.'
It is a matter of record that the claimant shared as widow in the estate of the deceased wage earner by decree of the Orphans Court of Allegheny County, Pennsylvania, No. 3473 of 1951.
The phrase 'living with' in Sec. 402(e)(1) of the Social Security Act should be broadly construed to accomplish the intent of Congress. Richards v. Social Security Administration, D.C.Mass.1948, 76 F.Supp. 12.
In the ordinary sense, the claimant and wage earner were not actually 'living with' each other at the time of the wage earner's death. However, to give effect to the intent of Congress in liberalizing the definition of 'living with' for purposes of the Social Security Act, they did become members of the same household by virtue of their reconciliation. Such a reconciliation was effected and an agreement reached through the efforts of their daughter, at the wage earner's request and at a time when his death was not expected. Actual cohabitation was prevented only by the wage earner's confinement in the hospital and his subsequent death. The wage earner and the claimant were 'living with' each other for the intent and purposes of the Social Security Act.
The decision of the Social Security Administration is reversed. Plaintiff's motion for summary judgment is granted; defendant's motions are denied.
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