The opinion of the court was delivered by: ABRUZZO
This is a proceeding to review a decision of the Social Security Board which held that Amanda S. Kandelin, as guardian-in-fact of Charles V. Kandelin, was not entitled to a lump-sum death benefit under the Social Security Act Amendments of August 10, 1939, 53 Stat. 1362, 42 U.S.C.A. § 401.
Jurisdiction to entertain the action is conferred, it would seem, by section 205 (g) of the amended Act, 42 U.S.C.A. § 405(g); although the defendant refutes this interpretation of the section cited.
The defendant having filed its answer, the case is now at issue. The defendant now moves to dismiss and for summary judgment as a matter of law.
As to the primary facts in the case, the plaintiff and the government are in accord. Armos V. Kandelin was a wage-earner insured under the Social Security Act Amendments of 1939, his number being 115-07-6295. He died domiciled in the State of New York, on August 10, 1940, leaving an infant son, Charles V. Kandelin, in whose behalf this action has been brought by his grandmother, Amanda S. Kandelin, as next friend. Also surviving him, is one Minnie Kandelin whom he married many years ago and who, it is contended by the plaintiff, abandoned the wage-earner in 1929, or thereabouts. It has been assumed that there had been no divorce.
After the death of Armos V. Kandelin, the wage-earner, his mother, Amanda, filed the present claim for a lump-sum death benefit under section 202 (g) of the Social Security Act Amendments of 1939, 42 U.S.C.A. § 402(g), with the Social Security Board.
The Board denied this claim on the ground that the wage-earner was survived by a widow.
Following the procedure set up by the Board under the 1939 Social Security Act Amendments, the plaintiff protested this decision and demanded a hearing before a referee.
The referee confirmed the determination of the Board.
As prescribed by the regulations, the plaintiff, then, appealed to the Appeals Council of the Social Security Board. This Council likewise affirmed the conclusion reached by the Board that the widow and not the infant son was entitled to the claimed benefit.
It is to review this determination by the Appeals Council and this action was brought.
Section 202(g) of the 1939 Amendments, 42 U.S.C.A. § 402 (g), provides that on the death of an insured individual, a benefit "shall be paid in a lump-sum to the following person (or if more than one, shall be distributed among them) whose relationship to the deceased is determined by the Board, and who is living on the date of such determination: To the widow or widower of the deceased; or, if no such widow or widower be then living, to any child or children of the deceased and to any other person or persons who are, under the intestacy law of the State where the deceased was domiciled, entitled to share as distributees with such children of the deceased, in such proportions as is provided by such law * * *."
Section 209 (m) of the amended Act, 42 U.S.C.A. § 409 (m), sets forth the following rule for determining the status of an individual: "(m) In determining whether an applicant is the wife, widow, child, or parent of a fully insured or currently insured individual for purposes of sections 401-409 of this chapter, the Board 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, widow, child, or parent shall be deemed such."
Section 83 of the Decedent Estate Law of the State of New York, Consol.Laws c. 13, provides:
"§ 83. The real property of a deceased person, male or female, not devised, shall descend, and the surplus of his or her personal property, after payment of debts and legacies, and if not bequeathed, shall be distributed to the surviving spouse, children, or next of kin or other persons, in manner following:
"1. One-third part to the surviving spouse, and the residue in equal portions to the children, and such persons as legally represent the children if any ...