the Hearing Examiner and affirmed by the Secretary.
The plaintiff in this case has sought a review of the findings and decision of the defendant. This Court is aware of the provision in the statute, 42 U.S.C.A. 405(g), that the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. However, at the outset it is to be noticed that the question presented herein presents ultimate conclusions drawn from evidentiary facts which themselves are not in dispute. This Court is, therefore, not bound by the conclusiveness of the findings of the administration. Kilby v. Folsom, 238 F.2d 699, (3rd Cir. 1956).
On June 20, 1929, at Bridgeport, Ohio, Ralph E. Scurfield and Alice Holliday Scurfield were ceremonially married. They continued to live together as man and wife until his death on May 11, 1957. In 1945 - not having any natural born children - they adopted a daughter who survived decedent. In the marriage application (Exhibit 24), the statement is that Ralph E. Scurfield was 29 years of age on July 13, 1928; a resident of Elizabeth, Pennsylvania; and a butcher by occupation. Also in the application, Scurfield stated that he had not been previously married. Thereafter, decedent and plaintiff resided together and maintained their marriage relation until his death - a period of 28 years less 40 days. All the evidence indicates that during this period Mrs. Scurfield never received any intimation from her husband or other persons that her husband had been previously married. For 18 of those years these people lived in Washington County, Pennsylvania, where decedent's parents and his other relatives resided. During their married life they lived in but two places - in Washington County, Pennsylvania, where decedent had been raised, until they moved to Wheeling, West Virginia about 1949 which is the place where decedent died. From the record it appears that plaintiff's first intimation that her marriage was being questioned came from a representative of the Social Security Administration. Thus it appears that the marriage of plaintiff and decedent was unchallenged for 28 years - during the time decedent lived - and for nearly 5 years thereafter. That marriage is, of course, clothed with the presumption of validity.
The Examiner's decision requiring the return of the overpayments to plaintiff is based on a ceremonial marriage which took place on August 20, 1919, between Ralph Skurfeld and Catherine M. Keenan. (Exhibit 15). As mentioned above, this marriage came to issue on the holographic inquiry made by Catherine M. Woods to the defendant, received at its Pittsburgh office on August 20, 1962. (Exhibit 20). It is emphasized that in this letter the writer says: " Ralph Skurfeld was my first husband * * *" She goes on to state that she had never divorced him. She states further - "I do not know if he is living or dead." She says she does not know his Social Security Account number or his parents' names. She says - " I may later file for benefits on his record." Her last sentence is - "Mr. Woods and I were never ceremonial married."
The Examiner found that the marriage of Catherine M. Keenan - a girl 18 years of age - to Ralph Skurfeld, when clothed with the presumption which the law gives it, has continued and outweighs the presumption that the 1929 marriage is valid. This is the point where this Court and the Examiner disagree. The Examiner and counsel before me have indicated that the law of Pennsylvania applies. However, notice that according to plaintiff her husband died in West Virginia. In any event, it has not been shown that the law of West Virginia is any different than the law of Pennsylvania, and the Court will proceed on the same basis as counsel and the Examiner.
The decision of the Supreme Court of Pennsylvania in Watt Estate, 409 Pa. 44, 185 A.2d 781, decided November 1962, is the last word on the substantive law on the weight to be given the various presumptions in a case of this nature. In the first place, there is the presumption that the 1919 marriage continues until the death of one of the parties or until a divorce is proven; but the law recognizes, as in Watt, the presumption of innocence in contracting the second marriage, as well as the presumption of the validity of the second marriage. Also underlying both presumptions is the theory that the parties to the second marriage did so innocently and without criminal or wrongful purpose or intent, and that the law favors marriage rather than concubinage. As in Watt, this Court is confronted with these several presumptions. The problem arises as to the weight which is to be given to each one. It is important and must be emphasized that the second presumption does not of itself destroy the first, but requires some proof of facts and circumstances to be given the effect of overcoming the first. The Court in Watt recognized several illustrations which may strengthen the second marriage, i.e., the other spouse had likewise remarried, as well as proof that the decedent had himself recognized the validity of the second marriage. And an important point also stressed in Watt is that he who claims the invalidity of the second marriage must overcome the presumption of its validity by proof of some nature. And further, that each case must be resolved on the basis of its own facts and circumstances and such inferences as fairly arise and can be reasonably drawn from them. It is also said that in the case of a conflict between the various presumptions, that presumption should yield which from the evidence and inferences therefrom render it the least probable to sustain. Now the Examiner in this case mentioned the Pennsylvania decisions and particularly stressed the Watt case in reaching his conclusion that the second marriage gave way to the first. I view the situation differently and come to a contrary conclusion. In the first place there is no evidence by any witness that the man who married the Keenan girl in the 1919 marriage is the same man who died on May 11, 1957, as the husband of the plaintiff. That marriage could have only lasted - according to Mrs. Woods - about 4 1/2 months; that is, from August 20, 1919 until the end of the year as she indicated that the parties separated the latter part of 1919. From the record she never saw or heard from her husband after they separated. Also from the evidence she never saw or heard from his parents nor any of his friends who in turn had seen or heard from him. She states that Ralph Skurfeld was her first husband. She indicates, however, that she had not ceremonially married Mr. Woods, but nevertheless it appears that she married him, a ceremonial marriage not being required in Pennsylvania during that period of time at least. She still prefers to go under the name of Woods, and apparently regards her marriage to him as still existing. When all the facts became known to her, she withdrew her claim for social security. After his 1929 marriage, decedent recognized it as the valid and existing one, and neither he nor anyone of his family, or other persons, ever gave any hint to the plaintiff that there was any question concerning their marriage. Thus, we have two strong reasons in support of the presumption of validity of the 1929 marriage, which tend to overcome any presumption favoring the 1919 marriage. But, also, the 1919 marriage was a ceremony between Ralph Skurfeld and Catherine M. Keenan. There are documents from the Clerk of Courts of Allegheny County (Exhibit 19) and Washington County (Exhibit 18) in Pennsylvania, and Ohio County in West Virginia (Exhibit 17), to the effect that there has been no divorce between Ralph Scurfield and Catherine M. Scurfield, but there is no certificate whatsoever as to any divorce between Ralph Skurfeld and Catherine Skurfeld. I conclude that the two surnames are not necessarily one and the same. Of course, the first half of the names are pronounced the same, but spelled differently, that is, Scur and Skur, but the last half of the names are entirely different both in spelling and pronouncing. This fact alone does not overcome the 1919 marriage, but it strengthens the presumption already existing in favor of the second marriage. This is so especially because Scurfield - at all times since 1919 where it has appeared of record - has made the statement that he had not been previously married. He so states in his application for his marriage license in 1929, and also in the 1945 adoption proceedings wherein plaintiff and decedent adopted a child. One might say that these two points do not detract from the validity of the first marriage and I agree, but the two points mentioned do strengthen the validity of the second marriage. To repeat, in Watt the Court says the second presumption does not of itself destroy the first, but requires some proof of facts and circumstances to be given the effect of overcoming the first. These two points, that the decedent said - that he had never been married, and the difference in names on the two marriage certificates - strengthen the presumption and tend to give validity to the second marriage. Assuming arguendo, that decedent was the man involved in the 1919 marriage, then it is established in the record that neither he nor Catherine recognized that marriage as existing. Catherine says in her letter that she does not know whether he divorced her. Under the law as applied in this situation, there is no proof that he did not. He had 10 full years to do so before his 1929 marriage, and there is no record here of non divorce - in the name of Skurfeld - in Washington County or West Virginia, or any place else. But finally, and most important in the ultimate conclusion that the 1929 marriage is valid, it seems to me, is that when
all the evidence is examined there is absolutely no proof that the man involved in the two marriages is one and the same person.
The Examiner says in his report that he - "is satisfied that the records pertaining to this marriage  which include a consent to the marriage of Catherine signed by her Step-Father in which the wage earner is named as Ralph Scurfield, when considered with other evidence of record, sufficiently identifies him to have been the wage earner." I disagree with this finding. There is no similarity in the writing or the pronunciation of the two names which tends to identify the decedent and Ralph Skurfeld as being one and the same person. This interesting subject is reviewed in Wigmore, Vol. IX, § 2529, p. 453. He discusses a supposed presumption of identity of persons from identity of name. He says three things are premised:
(a) A concordance in name alone is always some evidence of identity.
(b) In the greater number of cases the ruling is merely that identity of name may or may not be sufficient evidence to go to the jury or sufficient to support a verdict, depending on the circumstances.