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.'
The controlling issue in this case is whether under the law of Pennsylvania made applicable by Section 216(h)(1) of the Act, supra, Marjorie L. Warrenberger and the child, Ellen M. Warrenberger, are the 'widow' and 'child,' respectively, of the wage earner, within the meaning of the Act. This depends on the question whether the marriage between Marjorie and the wage earner was valid.
48 P.S.Pa. § 169, Act of March 13, 1815, P.L. 150, provides as follows:
'The husband or wife, who shall have been guilty of the crime of adultery, shall not marry the person with whom the said crime was committed during the life of the former wife or husband; but nothing herein contained shall be construed to extend to or affect or render illegitimate any children born of the body of the wife during coverture.'
The Referee summed up the arguments advanced by plaintiffs' counsel as follows:
'Counsel for the claimant recognizes the statutory prohibition against her marriage to the wage earner. However, he argues that this did not preclude the creation of a valid common-law marriage between the parties. He also argues that the marriage between the claimant and wage earner was voidable only, and not void and that it remained in effect so long as there were no proceedings to dissolve it. In support of his first contention he relies on Buradus v. General Cement Products Co., 159 Pa.Super, 501 (48 A.2d 883), which held that the statute requiring a license to wed did not outlaw common-law marriages.'
It is conceded, of course, that marriage without civil or religious ceremony is still valid under the common law of Pennsylvania. Buradus v. General Cement Products Co., 159 Pa.Super. 501, 504, 48 A.2d 883, 886. Counsel for claimants leans heavily on this case. After setting forth that 'The incidents of a common-law marriage always have been, marriage, contracted without civil or religious ceremony, and without prior license', and that 'Marriage without civil or religious ceremony * * * is still valid, under the common law of Pennsylvania', the Buradus case held in effect that the Marriage License Act of 1885, 48 P.S.Pa. § 2, did not require a license as a prerequisite to a valid common-law marriage, and that is about all that case did decide.
The Buradus case was silent on the required qualifications of the contracting parties. Under the provisions of the Act of 1815, above quoted, claimant Marjorie L. Warrenberger at all pertinent times herein was totally incapable of contracting any marriage, ceremonial or common-law. Consequently, in line with the able opinion of the Referee, it is my opinion, and I accordingly find, that the said Marjorie L. Warrenberger had no capacity to enter into a marriage with Charles Vernon Warrenberger, that the attempted common-law marriage with the said Charles Vernon Warrenberger was void, that the said Marjorie L. Warrenberger did not acquire any marital rights by virtue of said attempted common-law marriage, that accordingly the claimants, Marjorie L. Warrenberger and Ellen M. Warrenberger, do not have the status of 'widow' and 'child,' respectively, of the wage earner, Charles Vernon Warrenberger, under the terms of the Social Security Act, and that the claimant, Marjorie L. Warrenberger, is not entitled to the benefits for which she has applied on her own behalf and on behalf of Ellen M. Warrenberger, the child.
Judgment will be entered in accordance with Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), affirming the decision of the Secretary of Health, Education and Welfare; motion of plaintiffs for summary judgment will be denied, and motion of defendant for summary judgment will be granted.