The opinion of the court was delivered by: LEVET
This is an action for a declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring plaintiff to be the widow of the deceased-insured, pursuant to a common-law marriage under the laws of the State of New York, and directing defendant to pay over such sums allegedly due and owing plaintiff under a policy of life insurance issued by defendant upon the life of plaintiff's deceased common-law husband.
After hearing the testimony of the parties, examining the exhibits and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. This court has jurisdiction over the subject matter of the litigation and the parties thereto.
2. Decedent, William McGraw, a postal employee, was insured under Group Policy numbered 17000-G issued by Metropolitan Life Insurance Company to the United States Civil Service Commission, the policy holder, in the face amount of $20,000 and a certificate under Group Policy numbered 17000-G was issued to McGraw thereunder. No beneficiary was named by William McGraw. (See pretrial order stipulation.)
3. Group Policy 17000-G provides:
"* * * If, at the death of the Employee, there be no designated Beneficiary as to all or any part of the insurance, then the amount of the insurance payable for which there is no designated Beneficiary shall be payable to the person or persons listed below surviving at the date of the Employee's death, in the following order of precedence:
"(1) To the widow or widower of the Employee; * * *." (Ex. 2.)
4. Rose Kelly (sometimes referred to as "Rose") was born in Scotland in 1900. In 1910 she came to America with her father with whom she lived until his death in 1929. In April of 1929 Rose took up residence and lived with William McGraw (sometimes referred to as "McGraw"). They lived together as husband and wife in an apartment at 548 West 40 Street, New York City. When Rose Kelly first began living with William McGraw she adopted the surname "McGraw" as her own. William McGraw supported Rose and always introduced her to his friends as his "wife." (5-9.)
5. On July 11, 1934 Rose gave birth to a son fathered by William McGraw. The son was named John D. Kelly. Rose Kelly was and is a Catholic and wanted her son John to be baptized Catholic, while William McGraw, a Protestant, protested. McGraw would not consent to his son being raised a Catholic. Rose, therefore, without the knowledge of William McGraw, had the son baptized John D. Kelly. John continued to live with his parents until his marriage in 1957. (10-12, 23-25.)
6. The husband and wife relationship between Rose and William McGraw continued until 1941 when McGraw was drafted into the Army. Rose did not see McGraw while he was in the Army; however, she communicated frequently with him by letter. (8-11.)
7. Rose and William McGraw resumed their husband and wife relationship after his discharge from the Army in 1943, taking up residence in Corona, Long Island (New York). Rose continued to live with McGraw in Corona until 1966 when she underwent a serious face operation.
After the operation Rose, because of her health, moved to New Milford, Connecticut. (13-15.)
8. While living in New Milford Rose continued to see McGraw. She would travel to McGraw's new residence in New York City and live with him for a period of time. In similar fashion, McGraw would go to New Milford and stay with Rose. Whenever they would visit each other they would resume their relationship as it had been before the operation. Furthermore, McGraw ...