A-56992, MARCH 27, 1936, 15 COMP. GEN. 856

A-56992: Mar 27, 1936

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WHICH MARRIAGE WAS PERFORMED IN THE STATE OF OREGON. THE PRESUMPTION OF VALIDITY OF THE LAST MARRIAGE NOT HAVING BEEN COMPLETELY OVERCOME BY THE OTHER CLAIMING SPOUSE BY CONCLUSIVE EVIDENCE SHOWING NO DIVORCE IN ANY JURISDICTION IN WHICH THE VETERAN MAY HAVE RESIDED. THE LAW OF THE STATE IN WHICH THE MARRIAGE OF THE CLAIMING SPOUSE WAS PERFORMED FOLLOWING THE OREGON RULE IN SUCH CASES. LYDIA DECKER (WILKINS) IS THE VETERAN'S WIDOW WITHIN CONTEMPLATION OF SECTION 601 (A) OF THE WORLD WAR ADJUSTED COMPENSATION ACT.'. IT WILL BE RECALLED THAT THE EVIDENCE DISCLOSED THAT THE VETERAN (LEON WILKINS. 055) WAS MARRIED THREE TIMES: FIRST. - THAT IS. - WAS ANNULLED IN THE SUPREME COURT OF THE STATE OF NEW YORK ON THE GROUND THAT AT THE TIME OF THE MARRIAGE THE VETERAN WAS THE LEGAL HUSBAND OF IVA SMITH.

A-56992, MARCH 27, 1936, 15 COMP. GEN. 856

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION AWARD - MULTIPLE MARRIAGES OF VETERANS THE PRESUMPTION IN THE STATE OF OREGON IN CASES OF MULTIPLE MARRIAGES CONSUMMATED ACCORDING TO LAW BEING GREATLY IN FAVOR OF THE VALIDITY OF THE LAST MARRIAGE, THE AWARD BY THE VETERANS' ADMINISTRATION OF THE ADJUSTED- SERVICE-CERTIFICATE CREDIT TO THE VETERAN'S WIFE BY LAST MARRIAGE, WHICH MARRIAGE WAS PERFORMED IN THE STATE OF OREGON, NEED NOT BE REVERSED, THE PRESUMPTION OF VALIDITY OF THE LAST MARRIAGE NOT HAVING BEEN COMPLETELY OVERCOME BY THE OTHER CLAIMING SPOUSE BY CONCLUSIVE EVIDENCE SHOWING NO DIVORCE IN ANY JURISDICTION IN WHICH THE VETERAN MAY HAVE RESIDED, AND THE LAW OF THE STATE IN WHICH THE MARRIAGE OF THE CLAIMING SPOUSE WAS PERFORMED FOLLOWING THE OREGON RULE IN SUCH CASES.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 27, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 25, 1935, AS FOLLOWS:

PLEASE BE REFERRED TO YOUR COMMUNICATION UNDER DATE OF JANUARY 8, 1935, DESIGNATED A-56992 AND ADDRESSED TO THE HONORABLE JOHN TABER, HOUSE OF REPRESENTATIVES, WHEREIN IN REPLY TO REPRESENTATIONS SUBMITTED TO YOUR OFFICE BY MR. TABER YOU ADVISED HIM YOU FOUND NO LEGAL OBJECTION "TO THE HOLDING OF THE VETERANS' ADMINISTRATION THAT MRS. LYDIA DECKER (WILKINS) IS THE VETERAN'S WIDOW WITHIN CONTEMPLATION OF SECTION 601 (A) OF THE WORLD WAR ADJUSTED COMPENSATION ACT.'

IT WILL BE RECALLED THAT THE EVIDENCE DISCLOSED THAT THE VETERAN (LEON WILKINS, XC-869,055) WAS MARRIED THREE TIMES: FIRST, TO IVA SMITH IN NEW YORK STATE; SECOND, TO GERTRUDE GRACE IN NEW YORK STATE; AND THIRD, TO LYDIA CARLSTROM IN THE STATE OF OREGON. THE SECOND OF THE THREE MARRIAGES --- THAT IS, THE MARRIAGE TO GERTRUDE GRACE--- WAS ANNULLED IN THE SUPREME COURT OF THE STATE OF NEW YORK ON THE GROUND THAT AT THE TIME OF THE MARRIAGE THE VETERAN WAS THE LEGAL HUSBAND OF IVA SMITH. UPON THE DEATH OF THE VETERAN IVA SMITH WHO WAS MARRIED TO HIM FIRST AND LYDIA CARLSTROM WHO WAS MARRIED TO HIM LAST EACH CLAIMED THE ADJUSTED SERVICE CREDIT DUE UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED, AS THE LAWFUL WIDOW OF THE VETERAN. IN DETERMINING THESE OPPOSING CLAIMS THIS ADMINISTRATION FOUND THAT THE WIFE OF THE LAST MARRIAGE, LYDIA CARLSTROM DECKER (THE VETERAN HAVING GONE BY THE NAME OF DECKER IN THE STATE OF OREGON), SHOULD BE RECOGNIZED AS THE LAWFUL WIDOW OF THE VETERAN UNDER THE RULE OF LAW THAT IN ANY CASE WHEREIN TWO MARRIAGES ARE SHOWN TO HAVE BEEN CELEBRATED ACCORDING TO THE FORMALITIES OF LAW IT WILL BE PRESUMED IN FAVOR OF THE SECOND MARRIAGE THAT THE PRIOR MARRIAGE WAS LEGALLY DISSOLVED BEFORE THE SECOND MARRIAGE WAS CELEBRATED; FURTHER THAT THE VALIDITY OF MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT WAS CONTRACTED AND THAT THE LAW OF OREGON WHEREIN THE LAST MARRIAGE WAS CONTRACTED RAISES AN EXTREMELY STRONG PRESUMPTION OF VALIDITY "SO STRONG THAT PROOF OF A FORMER SUBSISTING MARRIAGE, IN ORDER TO BE SUFFICIENT TO OVERCOME THIS PRESUMPTION, MUST BE COGENT, AND CONCLUSIVE AS TO FAIRLY PRECLUDE ANY OTHER RESULT," CITING THE SUPREME COURT OF OREGON IN DE FORCE V. PARKER, ET AL., 249 PAC. 632.

FOLLOWING THE LAW OF OREGON AS CITED THE ADMINISTRATION FOUND THAT INASMUCH AS THE WHEREABOUTS OF THE VETERAN WAS NOT SATISFACTORILY ACCOUNTED FOR BETWEEN HIS FIRST MARRIAGE AND HIS THIRD MARRIAGE, A PERIOD OF SEVERAL YEARS, THE FIRST WIFE HAD NOT SUBMITTED EVIDENCE RESPECTING THE NON-DISSOLUTION OF THE FIRST MARRIAGE SUFFICIENT TO OFFSET THE STRONG PRESUMPTION OF THE VALIDITY OF THE LAST MARRIAGE AS ENTERTAINED BY THE OREGON LAW, PARTICULARLY IN VIEW OF THE FACT THAT THE WIFE OF THE LAST MARRIAGE WAS LIVING WITH THE VETERAN AT THE TIME OF HIS DEATH AND TO HOLD THE LAST MARRIAGE INVALID WOULD SUBJECT THE CHILD OF SUCH MARRIAGE TO ILLEGITIMACY.

FOLLOWING INSTRUCTIONS FROM YOUR OFFICE TO CERTIFY PAYMENT OF THE ADMINISTRATIVELY APPROVED AWARD IN FAVOR OF MRS. LYDIA DECKER (WILKINS) AND THE COMMENCEMENT OF INSTALLMENT PAYMENTS ON SUCH AWARD THE FIRST WIFE IVA SMITH WILKINS PRESENTED ADDITIONAL EVIDENCE INTENDED TO PROVE THAT THERE WAS NO DISSOLUTION OF THE MARRIAGE TO HER PRIOR TO THE TIME THE VETERAN MARRIED LYDIA DECKER (WILKINS) IN OREGON. IN THIS CONNECTION THERE HAVE BEEN SUBMITTED CERTIFICATES OF THE COURTS OR COUNTY CLERKS OF EIGHT COUNTIES SITUATED IN NEW YORK, OREGON, PENNSYLVANIA, AND OHIO, RESPECTIVELY. THERE HAS ALSO BEEN PRESENTED TO THE RECORD THREE ADDITIONAL AFFIDAVITS FROM ANDREW C. WARWICK, GERTRUDE GRACE, AND IVA SMITH WILKINS. THERE HAS BEEN ALSO SUBMITTED A BRIEF ON THE LAW PRESENTED BY BURKE W. DRUMMOND, AUBURN, NEW YORK, ATTORNEY FOR THE FIRST WIFE IVA SMITH WILKINS.

WHILE THE CERTIFICATES OF THE COURTS OR COUNTY CLERKS CONSTITUTE NEW AND ADDITIONAL EVIDENCE IN THAT THEY SHOW FURTHER NEGATIVE EVIDENCE OF ANY DISSOLUTION OF THE FIRST MARRIAGE IN PLACES WHERE THE VETERAN WAS KNOWN TO BE DURING THE INTERVENING YEARS BETWEEN HIS FIRST AND LAST MARRIAGES NEVERTHELESS THE EVIDENCE WOULD INDICATE THAT THE WHEREABOUTS OF THE VETERAN DURING THE PERIOD BETWEEN THE FIRST AND LAST MARRIAGES IS NOT ENTIRELY ACCOUNTED FOR, SUCH FACT RESULTING IN THE SITUATION THAT THE FIRST WIFE HAS NOT SHOWN WITH CERTAINTY THAT THE MARRIAGE OF THE VETERAN TO HER HAD NOT BEEN DISSOLVED PRIOR TO THE VETERAN'S MARRIAGE TO LYDIA DECKER (WILKINS) IN THE STATE OF OREGON.

ON PAGE 23 OF THE BRIEF AS SUBMITTED IN BEHALF OF THE LAST WIFE IT IS CONTENDED THAT THE POSITION OF THE ADMINISTRATION WAS IN ERROR IN HOLDING THAT THE CHILD OF THE LAST MARRIAGE WOULD BE ILLEGITIMATE UNLESS THE VALIDITY OF THE LAST MARRIAGE IS SUSTAINED. INQUIRY INTO THE OREGON LAW (SECTION 10-201, CHAPTER 2, OF THE OREGON CODE ANNOTATED 1931) AS CITED IN THE BRIEF SUBMITTED WILL DISCLOSE THAT A CHILD BORN OUT OF WEDLOCK IS TO BE REGARDED AS LEGITIMATE ONLY ,WITHIN THE MEANING OF THIS ACT" WHICH ACT CONTROLS QUESTIONS OF DESCENT AND DISTRIBUTION. THE OREGON LAW AS CITED DOES NOT OTHERWISE HOLD LEGITIMATE A CHILD BORN OUT OF WEDLOCK IN THE ABSENCE OF ANY SUBSEQUENT VALID MARRIAGE OF THE PARENTS; IN THE SECTION REFERRED TO, THE INCLUSION OF THE WORDS "WITHIN THE MEANING OF THIS ACT" CARRIES WITH IT, IN THE VIEW OF THIS ADMINISTRATION, A LIMITATION RESPECTING LEGITIMACY TO QUESTIONS OF INHERITANCE AND DISTRIBUTION AS DISTINGUISHED FROM THE LEGITIMACY FOR "ALL INTENTS AND PURPOSES" AS ESTABLISHED BY THE OREGON LAW (SEC. 10-202, CHAP. 2) IN THE CASE OF THE VALID MARRIAGE OF PARENTS AFTER THE BIRTH OF AN ILLEGITIMATE CHILD.

IN THE LIGHT OF THE ADDITIONAL REPRESENTATIONS PRESENTLY MADE YOUR DECISION IS REQUESTED AS TO WHETHER THIS ADMINISTRATION IS JUSTIFIED IN ADHERING TO ITS ORIGINAL DETERMINATION. THE LETTER FROM BURKE W. DRUMMOND DATED OCTOBER 8, 1935, TOGETHER WITH ENCLOSURES REFERRED TO THEREIN ARE HEREWITH SUBMITTED FOR YOUR CONSIDERATION. IT IS REQUESTED THAT THESE ORIGINAL PAPERS BE RETURNED TO BE PLACED IN THE VETERAN'S FILE IN THIS ADMINISTRATION.'

THE PRINCIPLE OF LAW APPLICABLE IN OREGON TO THIS CLASS OF CASES IS STATED IN THE DECISION OF THE SUPREME COURT OF OREGON IN DE FORCE V. PARKER ET AL., DATED SEPTEMBER 21, 1926, 249 PAC. 632, AS FOLLOWS:

IT IS NOW THE SETTLED LAW IN THIS STATE THAT WHERE A MARRIAGE HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE FORMS OF THE LAW, THE LAW INDULGES A STRONG PRESUMPTION IN FAVOR OF ITS VALIDITY. IT IS INCUMBENT UPON A PARTY WHO ASSERTS THE INVALIDITY OF SUCH A MARRIAGE, UPON THE GROUNDS THAT ONE OF THE PARTIES THERETO HAS BEEN FORMERLY MARRIED, TO ALLEGE AND PROVE THAT THE PARTIES TO THE ALLEGED FORMER MARRIAGE WERE ELIGIBLE TO CONSUMMATE THE SAME; AND THAT THE SPOUSE OF SUCH FORMER MARRIAGE IS STILL LIVING; THAT THE FIRST MARRIAGE HAS NOT BEEN DISSOLVED BY DIVORCE OR BY THE DEATH OF ONE OF THE PARTIES. * * *

IN MY LETTER OF JANUARY 8, 1935, TO CONGRESSMAN TABER, REFERRED TO IN YOUR LETTER, SUPRA, THE FOLLOWING WAS SAID AFTER CITATION OF THE FACTS AND APPLICABLE LAW:

THE VETERAN'S MARRIAGE TO LYDIA CARLSTROM ON SEPTEMBER 3, 1927, WAS CONTRACTED IN THE STATE OF OREGON, IN WHICH STATE THE VETERAN CONTINUED TO LIVE UNTIL THE DATE OF HIS DEATH, ON OCTOBER 3, 1933, AND THE VETERAN'S MARRIAGE IN OREGON APPEARS VALID IN THAT STATE. IT APPEARS, ALSO, THAT THE COURTS OF THE STATE OF NEW YORK, THE STATE OF DOMICILE OF THE PERSON CLAIMING TO BE THE VETERAN'S WIDOW AS A RESULT OF THE VETERAN'S FIRST MARRIAGE CONTRACTED IN THAT STATE, FOLLOW THE OREGON RULE ABOVE ALLUDED TO, IT HAVING BEEN HELD, FOR INSTANCE, IN A SIMILAR CASE, GRAHAM V. GRAHAM, 207 N.Y.S. 196, 211 APP.DIV. 580, THAT THE PRESUMPTION OF THE VALIDITY OF A MARRIAGE WAS ONE OF THE STRONGEST PRESUMPTIONS KNOWN TO THE LAW. VIDE 14 L.R.A. 540; L.R.A. 1916 C, 744; L.R.A. (N.S.) 98).

THERE WAS A LAPSE OF ABOUT 16 YEARS BETWEEN THE FIRST MARRIAGE AND THE LAST MARRIAGE, WHICH SUGGESTS THE POSSIBILITY OF THE VETERAN HAVING OBTAINED A DISSOLUTION OF THE FIRST MARRIAGE AT SOME TIME PRIOR TO HIS MARRIAGE TO LYDIA CARLSTROM--- AND A CHILD WAS BORN OF THIS MARRIAGE IN OREGON, THUS GIVING RISE ALSO TO A STRONG PRESUMPTION FAVORING THE LEGITIMACY OF SAID CHILD; AND ALSO, THE VETERAN AND LYDIA CARLSTROM,WHOM THE VETERAN MARRIED IN 1927, LIVED TOGETHER AS MAN AND WIFE FOR A PERIOD OF ABOUT SIX YEARS AND WERE SO LIVING TOGETHER AT THE TIME OF THE VETERAN'S DEATH IN 1933; IN VIEW OF ALL WHICH THERE APPEARS TO BE NO LEGAL OBJECTION TO THE HOLDING OF THE VETERANS' ADMINISTRATION THAT MRS. LYDIA DECKER (WILKINS) IS THE VETERAN'S WIDOW WITHIN CONTEMPLATION OF SECTION 601 (A) OF THE WORLD WAR ADJUSTED COMPENSATION ACT, HEREINBEFORE QUOTED. VIDE UNITED STATES V. WILLIAMS, 278 U.S. 255 (257).

IN VIEW OF THE RULE ESTABLISHED BY THE COURTS OF OREGON AND THE FACTS IN THIS CASE, IT WOULD APPEAR THAT THE BURDEN IS UPON THE FIRST WIFE WHO ASSERTS THE INVALIDITY OF THE LATER MARRIAGE OF PROVING, IN EFFECT, A NEGATIVE, WHICH PROOF MUST BE SO CONCLUSIVE AS WHOLLY TO OVERCOME THE PRESUMPTION FAVORING THE VALIDITY OF THE LATER MARRIAGE. AT THE TIME MY LETTER OF JANUARY 8, 1935, WAS WRITTEN THE FIRST WIFE, MRS. IVA SMITH WILKINS, HAD SUBMITTED EVIDENCE SHOWING THAT THE DIVORCE RECORDS OF CAYUGA AND CORTLAND COUNTIES IN NEW YORK AND OF LANE AND WASCO COUNTIES IN OREGON, WHERE THE VETERAN WAS REPORTED TO HAVE RESIDED FOR CERTAIN PERIODS BETWEEN TIME OF SEPARATION FROM HER IN 1912 AND DATE OF HIS LAST MARRIAGE IN 1927, FAILED TO DISCLOSE A DIVORCE BETWEEN HERSELF AND THE VETERAN. THERE HAS NOW BEEN PRESENTED EVIDENCE SHOWING--- IN ADDITION TO THE COUNTIES HERETOFORE NAMED--- THAT NO DIVORCE HAD BEEN OBTAINED IN THE FOLLOWING COUNTIES IN WHICH THE VETERAN IS SAID TO HAVE RESIDED DURING A PORTION OF THE INTERVENING PERIOD IN QUESTION: MONROE, TIOGA, AND STEUBEN OF NEW YORK; MULTNOMAH OF OREGON; BERKS OF PENNSYLVANIA; AND SUMMIT OF OHIO. HOWEVER, WHILE A PAINSTAKING EFFORT APPEARS TO HAVE BEEN MADE ON THE PART OF THE VETERAN'S FIRST WIFE TO PROVE THE NONEXISTENCE OF A DIVORCE BETWEEN HERSELF AND THE VETERAN, THE WHEREABOUTS OF THE VETERAN DURING THE ENTIRE PERIOD IN QUESTION HAS NOT BEEN FULLY ACCOUNTED FOR- - THUS STILL LEAVING THE POSSIBILITY THAT THE VETERAN MAY HAVE OBTAINED A DIVORCE ELSEWHERE.

THE BRIEF OF LAW SUBMITTED IN BEHALF OF THE FIRST WIFE, IVA SMITH WILKINS, HAS BEEN CAREFULLY CONSIDERED, AND WHILE FORCEFUL ARGUMENTS ARE PRESENTED THEREIN WITH THE VIEW OF ESTABLISHING THE CONTINUANCE OF THE FIRST MARRIAGE I AM UNABLE TO AGREE THAT SUCH ARGUMENTS, INCLUDING THE ADDITIONAL EVIDENCE SUBMITTED, REQUIRE THAT YOU REVERSE YOUR PREVIOUS DETERMINATION THAT THE WIDOW OF THE VETERAN, WITHIN THE MEANING OF THE STATUTE HERE IN QUESTION, IS THE WOMAN THE VETERAN MARRIED IN OREGON IN 1927, WITH WHOM HE WAS LIVING AT THE TIME OF HIS DEATH IN 1933 AND WHO IS THE MOTHER OF HIS CHILD NOW ABOUT 7 YEARS OF AGE--- RATHER THAN THE WOMAN HE MARRIED IN NEW YORK IN 1911 AND WITH WHOM HE LIVED FOR ONLY ABOUT 1 YEAR.