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UNITED STATES v. LEARY

May 3, 1950

UNITED STATES
v.
LEARY et al.



The opinion of the court was delivered by: CURRAN

This is an action in the nature of a bill of interpleader brought by the plaintiff, the United States of America, pursuant to Section 19 of the World War Veterans' Act of 1924, as amended, and Section 617 of the National Service Life Insurance Act of 1940, as amended, Sections 445 and 817, Title 38 U.S.C.A., against the defendants Jeannette Leary and Mary D. Vezina, who claim to have an interest in a certain policy of National Service Life Insurance issued by the plaintiff to Thomas J. Vezina, deceased.

Pursuant to the death of the insured, the insurance contract matured and the lawful beneficiary is entitled to receive insurance benefits under the terms of the insurance contract. The plaintiff is ready and willing to pay all sums of money due as insurance payments to the lawful beneficiary or beneficiaries of the insurance contract, but there is a dispute as to the person or persons entitled to receive the benefits thereunder, and by reason of the conflicting claims and interests of the defendants herein this suit was filed.

 On March 2, 1942, the insured, at Fort Dix, New Jersey, executed W.D., A.G.O. Form 221, entitled 'Report of Induction of Selective Service Man' in which he gave the name of Elvia Vezina, Brumley, Missouri, described as his wife, as the person eligible to be his beneficiary. In the same form he gave the name of Jeannette Leary, described as his sister, 290 Dwelly Street, Fall River, Massachusetts, as his nearest relative and person to be notified in case of emergency.

 The insured entered into a marriage ceremony with Elvia Thornton at Lebanon, Missouri, on December 15, 1936. In December, 1937 he went to live with his sister, Jeannette Leary, in Fall River, Massachusetts. Thereafter he was employed in various hospitals in the city of New York And in the State of New Jersey. During periods of unemployment he would return to the home of his sister in Fall River, Massachusetts and on occasions he would return to the home of his wife, Elvia Vezina, in Missouri. He never lived with his wife in Missouri after March 1940 and thereafter he continued his intermittent employment in hospitals in New York City and the nearby New Jersey area.

 The insured entered into a marriage ceremony with Mary D. Repko at Charleston, South Carolina, on May 18, 1942. After his induction into the military service he was assigned from March 7, 1942 to May 5, 1942, to the Second Army Air Base at Savannah, Georgia, and from May 6, 1942 to June 3, 1942 to the Eighth Interior Command at Charleston, South Carolina. On June 4, 1942 he shipped for England and thereafter all his assignments were in the European Theater.

 In his application for family allotment, executed June 1, 1942, the insured stated that he was divorced from Elvia Vezina on June 12, 1941, in the Second District, Kansas City, Missouri. On September 14, 1948 William M. Anderson, Deputy Clerk of the Circuit Court of Jackson County, Missouri, executed a certificate, under seal, to the effect that he had examined the records of the said court from January 1, 1936 to January 1, 1945, and found no suit for divorce brought in that court by Thomas J. Vezina against Elvia Vezina, or vice versa, between the said dates.

 Elvia Vezina of Carthage, Jasper County, Missouri, entered into a marriage ceremony with Clyde A. Yarbrough of Carthage, Jasper County, Missouri, on May 23, 1942.

 On November 19, 1949, Maynard O. Witherell, Associate Attorney, Veterans Administration, certified that a search of the court records at the office of the Register of Probate of Briston County, Massachusetts, at Tauton, revealed no record of any action instituted for divorce or legal separation, either by Thomas J. Vezina against Elviz Vezina, or vice versa. Jeannette Leary knows of no action instituted or decree entered pertaining to a divorce, separation or annulment between Thomas J. Vezina and Elvia Vezina. Mary D. Vezina knows of no action instituted or decree pertaining to a divorce, separation or annulment between Thomas J. Vezina and Elvia Vezina.

 It is stipulated that the testimony of Elvia Vezina, now known as Mrs. Clyde A. Yarbrough, appearing in her deposition now of record in this court, that she never received a copy of a summons, complaint or any other paper pertaining to a divorce or separation proceeding by Thomas J. Vezina against her, nor did she ever receive a copy of any decree or order divorcing her from Thomas J. Vezina; that she received information that Thomas J. Vezina was dead and believing that, she married Clyde A. Yarbrough.

 The August 1, 1946 Amendment to Section 802, Title 38 U.S.C.A. provides: '(g) The insurance shall be payable only to a widow, widower, child (including a step-child or an illegitimate child if designated as beneficiary by the insured), parent, brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided, and shall, subject to regulations, at all times have the right to change the beneficiary or beneficiaries of such insurance without the consent of such beneficiary or beneficiaries but only within the clauses herein provided: Provided, That the provisions of this subsection as to the restricted permitted class of beneficiaries shall not apply to any national service life-insurance policy maturing on or after August 1, 1946.'

 The question to be determined here is, was Mary D. Vezina the legal wife of Thomas J. Vezina on January 30, 1944, the date of his death. The determination of this question will decide who is entitled to the proceeds of the National Service Life Insurance contract in question, for prior to August 1, 1946 an insured had the right to designate the beneficiary or beneficiaries of his insurance but only within the classes provided in the aforementioned Section 802, Title 38 U.S.C.A. It follows, therefore, that if Mary D. Vezina was the legal wife of the insured at the time of his death, she is entitled to the proceeds of the policy because she is the one named as principal beneficiary.

 The validity of the second marriage will be determined by the laws of South Carolina. The 1942 Code of Laws of South Carolina, Vol. 4, Sec. 8568 provides as follows: 'All marriages contracted while either of the parties has a former wife or husband living shall be void; provided, that this section shall not extend to a person whose husband or wife shall be absent for the space of seven years, the one not knowing the other to be living during that time; nor to any person who shall be divorced, or whose first marriage shall be declared void by the sentence of a competent court.'

 In this case the insured never lived with his wife in Missouri after March, 1940 and entered into a marriage ceremony with Mary D. Repko at Charleston, South Carolina on May 18, 1942, and no record of a divorce or decree of annulment of the first marriage has been found. ...


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