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. He, therefore, does not come within the exception in Sec. 8568, supra.
Where a soldier was divorced by interlocutory order but entered into an attempted marriage before the order became final and designated his purported wife as beneficiary under a National Service Life Insurance policy, the marriage was initially void and the second wife was not entitled to take under the policy upon the soldier's death since she was not in a class of permissible beneficiaries. Gehm v. United States, D.C. N.Y. 1949, 83 F.Supp. 1003.
Where the insured obtained a divorce on March 29, 1944 and the decree provided that the divorce would not be absolute for a period of six months, the alleged common law marriage on April 1, 1944 between the insured and the plaintiff who claimed as beneficiary of a National Service Life Insurance policy was void. Branch v. United States, D.C. Okl., 1949, 83 F.Supp. 641.
It may be argued in favor of the validity of the second marriage that there is a presumption of its validity in the law. Hatfield v. United States, 2 Cir., 1942, 127 F.2d 575. However, such presumption does not survive a factual demonstration to the contrary. Boone v. Boone, 1947, 189 Misc. 214, 70 N.Y.S.2d 619. Gehm v. United States, supra.
Here the defendant entered into a marriage ceremony with Elvia Thornton on December 15, 1936; entered into another marriage ceremony with Mary D. Repko on May 18, 1942, after having given the name of Elvia Vezina as his wife and the person eligible to be his beneficiary on March 2, 1942 when he was inducted into the Army; and on June 1, 1942 stated that he was divorced from Elvia Vezina on June 12, 1941 in Kansas City, Missouri. No evidence has been presented to the court showing a divorce or an annulment between the insured and Elvia Thornton Vezina. On the contrary, the records of the Circuit Court of Jackson County, Missouri fail to disclose any divorce or annulment between these parties, and the records of the office of the Register of Probate for Bristol County, Massachusetts reveal no record of any action instituted for divorce or annulment between these parties, and the defendants themselves and Mrs. Clyde Yarbrough (Elvia Vezina) have no knowledge of a divorce or annulment between the insured and Elvia Vezina. It follows, therefore, that in the absence of any proof of a divorce or annulment between the insured and Elvia Thornton Vezina that the alleged marriage between the insured and Mary D. Vezina, named as the principal beneficiary, was void. This being so, the said beneficiary was not within the class having an insurable interest in the insured's life, and the proceeds of the policy are payable, not to her but to the insured's sister, Jeannette Leary, the contingent beneficiary. The findings of fact and conclusions of law having been found in this opinion, no formal findings will be necessary. Counsel for the plaintiff will prepare the appropriate order not inconsistent with this opinion.
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