The opinion of the court was delivered by: LEIBELL
This is an action under the National Service Life Insurance Act of 1940, Title 38 U.S.C.A. § 817, brought against the United States of America by the plaintiff, Anna Gehm, allegedly the widow of the insured, Edmund R. Gehm, as the designated beneficiary of a National Service Life Insurance policy. By an order dated January 14, 1949 Frieda Gehm and Serena Gehm, allegedly a surviving widow and the daughter of the deceased insured, were impleaded in the action as parties defendant.
The facts which gave rise to the conflicting claims to the proceeds of the insurance policy are as follows:
On August 2, 1924 Edmund R. Gehm married Frieda Roos in Miesenbach, Germany, in a civil and a ceremonial marriage. A child, Serena Gehm, was born of that marriage on May 10, 1925 at Miesenbach, Germany. In 1927 Edmund Gehm immigrated to the United States, leaving his wife and child in Germany. On December 14, 1943 he obtained an 'Enoch Arden' interlocutory order of dissolution of his marriage to Frieda Roos Gehm in the Supreme Court of the State of New York, Bronx County. The order provided:
'Ordered that this order is interlocutory, but shall become the final order as of course three months after the entry and filing thereof, unless for sufficient cause the Court in the meantime shall have otherwise ordered. Upon this order becoming the final order, the said marriage shall be dissolved and it shall be lawful for the petitioner to marry again.'
On January 27, 1944 Edmund R. Gehm married the plaintiff in a civil ceremony in New York. Thereafter they resided in New York State, and cohabited in New York State and in the State of New Jersey. No further ceremony solemnizing this marriage was performed after January 27, 1944.
On February 7, 1944 Edmund R. Gehm was inducted into the Army Forces of the United States and on February 9, 1944 applied for a National Service Life Insurance Policy. The policy No. N-15602790 was issued on March 11, 1944, effective as of February 9, 1944, in the amount of $ 10,000.00. His application designated Anna Gehm, described as the insured's wife, as principal beneficiary, and Paul Hirdt, Anna Gehm's son, described as the insured's stepson, as contingent beneficiary.
While the insured was in the Armed Forces and stationed at Fort Dix, New Jersey, he died, the policy of insurance being in full force and effect.
Section 6 of the Domestic Relations Law of the State of New York, McK. Consol. Laws, c. 14, provides that:
'A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either * * *
'3. Such former marriage has been dissolved pursuant to section seven-a of this chapter.'
Section 7-a of the New York Domestic Relations Law provides in part as follows:
'Dissolution of marriage on ground of absence
'1. A party to a marriage may present to the supreme court a duly verified petition showing that the husband or wife of such party has absented himself or herself for five successive years then last past without being known to such party to be living during that time; that such party believes such husband or wife to be dead: and that a diligent search has been made to discover evidence showing that such husband or wife is living, and no such evidence has been found. * * * and if this court * * * after a hearing and proof taken, is satisfied of the truth of all the allegations contained in the petition, it may make an interlocutory order dissolving such marriage.'
The marriage of the decedent to Frieda Gehm was not dissolved by the rendition of the interlocutory order in December of 1943. He could not therefore legally marry Anna Gehm within the period of three months following the rendition of the interlocutory order. His marriage to her within five weeks of that time was invalid and void ab initio. The decedent, until the expiration of three months after the entry of the interlocutory order of dissolution, came within the terms of Sections 6 and 7-a of the Domestic Relations Law of New ...