New Amsterdam Casualty Co. v. Seals , 55 Ga. App. 569 ( 1937 )

Felton, J.

1. Where a man contracted a second marriage while his first wife was still alive, it will be presumed in favor of the validity of the second marriage that the first marriage was legally dissolved by divorce before the second marriage was entered into; and one who asserts the invalidity of the second marriage must show that there has not been any divorce. Brown v. Parks, 173 Ga. 228 (160 S. E. 238); Murchison v. Green, 128 Ga. 339 (57 S. E. 709, 11 L. R. A. (N. S.) 702); Ward v. Ward, 24 Ga. App. 695 (102 S. E. 35).

2. Where proof of a negative is essential to the existence of a right, the burden of proving such negative is properly placed on the party claiming the right. Where, therefore, the right of a claimant to property of an intestate rests on the supposed illegality of a marriage, the claimant must, before he can make good that right, by proper proof remove every presumption of the legality of the second marriage. Brown v. Parks, supra.

Decided March 4, 1937. Rehearing denied March 30, 1937. Bussey & Fulcher, for plaintiffs in error. Henry J. Hefernan, Albert G. Ingram., contra.

3. An award in favor of the first wife of the deceased insured was made by the industrial commission, and was affirmed by the superior court on appeal. It appeared from the record that there was a subsequent ' marriage between the deceased and another woman, and th,e only evidence introduced to overcome the presumption of the validity of the second marriage was as follows: '“Q. You are the wife of Henry B. Seals, deceased? A. Yes sir. Q. How many years have you been mar•ried? A. About twenty. Q. You got married about twenty years ago? A. Yes sir.” In the absence of positive testimony that a divorce between her and the deceased had not been granted, the evidence was insufficient to overcome the presumption of the validity of the second marriage, and the judgment affirming said award was error.

Judgment reversed.

Sutton, J., concurs. Stephens, P. J., dissents.