York by their respective spouses on the ground of adultery. The divorce decrees respectively forbade plaintiff and decedent to marry any person during the life of her or his former spouse without the divorce court's consent. Without obtaining such consent and while their former spouses were still alive, the plaintiff and decedent were married to each other in Pennsylvania in 1943. Nevertheless, the Court held that plaintiff was the 'widow' of the decedent and she was therefore a permissible beneficiary within the meaning of 38 U.S.C.A. § 802(g). With all due respect to a Court whose opinions we highly regard, we must disagree with the narrow interpretation placed upon § 9 of the Pennsylvania Act by the Lembcke case. From our reading of In re Stull's Estate, supra, and Schofield v. Schofield (No. 1), 1912, 51 Pa.Super. 564, we earnestly believe that a Pennsylvania court of state-wide jurisdiction would hold that the personal incapacity to marry imposed by § 9 is applicable to all guilty parties marrying the corespondent within the confines of Pennsylvania regardless of where the divorce was obtained.
In order to determine whether a petitioner has met his burden of establishing that he is a person of good moral character, we must first ascertain whether Congress has labeled, directly or by implication, the conduct in question as not measuring up to good moral character. For example, see In re Lee Wee's Petition, D.C.S.D.Cal.1956, 143 F.Supp. 736. When Congress is silent on the question, we should see if the petitioner's character coincides with the generally accepted mores or standards of the average citizen of the community in which the petitioner resides. Brukiewicz v. Savoretti, 5 Cir., 1954, 211 F.2d 541; In re Mogus, D.C.W.D.Pa.1947, 73 F.Supp. 150; In re Markiewicz, D.C.W.D.Pa.1950, 90 F.Supp. 191. The personal view of the judge who is ruling on the petition is of no importance. If the petitioner's conduct fails to satisfy the community test, then we should see whether the 'common conscience', when it is possible of being ascertained, of the country as a whole also looks disfavorably upon such conduct. See United States v. Francioso, 2 Cir., 1947, 164 F.2d 163; Johnson v. United States, 2 Cir., 1951, 186 F.2d 588; Petition of F G , D.C.S.D.N.Y.1956, 137 F.Supp. 782, 785. The collective viewpoint of the individual states and territories as expressed through their laws, statutory and decisional, is acceptable evidence of that common conscience.
On the issue before us, Congress has given us no clue as to its thought on the matter. When we apply the community test, petitioner's conduct, it seems to us after we have read the Pennsylvania cases of In re Stull's Estate, Schofield v. Schofield (No. 1), and Kalmbacher v. Kalmbacher, supra, does not meet the test. Therefore we must ascertain the common conscience of the country as a whole concerning the conduct in question. Only three other States, Louisiana, Tennessee and New York, have provisions in their laws similar to those of § 9 of the Pennsylvania Act of 1815.
Under certain circumstances, after three years have elapsed, a New York Court may permit the guilty party to marry the corespondent.
In Virginia, a court may decree that the guilty adulterous party shall not remarry, but such a decree may be revoked after the expiration of six months.
The Territory of Puerto Rico imposes a five year inability to contract marriage where the parties have been convicted of adultery by final judgment.
The absence of similar pronouncements in the remaining states and territories, it seems to us, is a fairly good indicator of the attitude of the country as a whole regarding the freedom of the guilty adulterous party against whom a decree of divorce has been obtained to marry the corespondent, paramour, or accomplice in adultery. Thus if at the time petitioner was married in Pennsylvania, she resided in and was married in any territory or state of the United States other than Pennsylvania, Louisiana or Tennessee, such a marriage would have been valid and recognized as such in every other territory or state, including the last three named States, and her moral character would never have been questioned by the Naturalization Service on the ground that she married and lived with her correspondent. That petitioner, by fortuitous circumstances, chose to reside, obtain a license, and have her marriage solemnized by a church ceremony in one of the few states whose public policy is against such a marriage, should not be determinative, in our opinion, of whether her subsequent living with Elmer Russell Mayall renders her moral character good or bad within the meaning of § 316(a) of the Immigration and Nationality Act of 1952. It is only fair then that petitioner's conduct be looked upon in the same light as one would look upon a person, in the same position as petitioner, who went through the same procedure of getting married, as did petitioner, in one of the territories or states other than Pennsylvania, Louisiana or Tennessee.
Conclusions of Law
1. This court has jurisdiction of the parties and of the subject matter in this proceeding.
2. Petitioner has established that she is and has been a person of good moral character for the period of five years immediately preceding the date of her filing of her petition for naturalization.
Accordingly, the recommendation of the United States Naturalization Examiner that the petition be denied on the ground that the petitioner has failed to establish good moral character during the period required by law is overruled, and the petition will be approved.