A-83529, MARCH 2, 1937, 16 COMP. GEN. 798

A-83529: Mar 2, 1937

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CLAIMS - CONFLICTING - REJECTION OF ALL - DOUBT AS TO PROPER PAYEES WHERE CLAIMS FOR DETERMINATION UNDER THE LAWS OF GEORGIA IN CONNECTION WITH AN AMOUNT AUTHORIZED BY PRIVATE ACT OF THE CONGRESS TO BE PAID "TO THE HEIRS OF HENRY SHAW" ARE PRESENTED BY SEVERAL PARTIES. THERE EXISTS SUFFICIENT DOUBT WHETHER THE DECEASED WAS DIVORCED AT THE TIME OF HIS SECOND MARRIAGE OR THAT THE MINOR CHILD OF THE FIRST WIFE WAS ACKNOWLEDGED BY HIM AS HIS SON. NO ALLOWANCE MAY BE MADE ON ANY OF THE CLAIMS IN THE ABSENCE OF A FINAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION AS TO WHO ARE THE DECEDENT'S HEIRS OR THE PROPER DISTRIBUTEES OF HIS PERSONAL ESTATE. OR UNTIL THERE IS SUBMITTED FOR CONSIDERATION NEW AND MATERIAL EVIDENCE.

A-83529, MARCH 2, 1937, 16 COMP. GEN. 798

CLAIMS - CONFLICTING - REJECTION OF ALL - DOUBT AS TO PROPER PAYEES WHERE CLAIMS FOR DETERMINATION UNDER THE LAWS OF GEORGIA IN CONNECTION WITH AN AMOUNT AUTHORIZED BY PRIVATE ACT OF THE CONGRESS TO BE PAID "TO THE HEIRS OF HENRY SHAW" ARE PRESENTED BY SEVERAL PARTIES, TWO OF WHOM CLAIM AS WIFE, ANOTHER AS GUARDIAN FOR A MINOR SON OF THE FIRST WIFE, AND THERE EXISTS SUFFICIENT DOUBT WHETHER THE DECEASED WAS DIVORCED AT THE TIME OF HIS SECOND MARRIAGE OR THAT THE MINOR CHILD OF THE FIRST WIFE WAS ACKNOWLEDGED BY HIM AS HIS SON, NO ALLOWANCE MAY BE MADE ON ANY OF THE CLAIMS IN THE ABSENCE OF A FINAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION AS TO WHO ARE THE DECEDENT'S HEIRS OR THE PROPER DISTRIBUTEES OF HIS PERSONAL ESTATE, OR UNTIL THERE IS SUBMITTED FOR CONSIDERATION NEW AND MATERIAL EVIDENCE.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MARCH 2, 1937:

THERE ARE BEFORE THIS OFFICE FOR CONSIDERATION CONFLICTING CLAIMS OF ANNIE SHAW AND HER MINOR SON, FRANK SHAW, AND OF VENZALINE SHAW FOR $1,000 AUTHORIZED AND DIRECTED BY PRIVATE ACT NO. 584, APPROVED MAY 26, 1936, TO BE PAID "TO THE HEIRS OF HENRY SHAW," WHO WAS DROWNED OCTOBER 21, 1934, WHILE EN ROUTE TO BLACKBEARD ISLAND, GA., FOR DUTIES UNDER THE BUREAU OF BIOLOGICAL SURVEY, DEPARTMENT OF AGRICULTURE. THE PRINCIPAL QUESTION PRESENTED BY THE CONFLICTING CLAIMS IS THE VALIDITY OF THE MARRIAGE BETWEEN THE DECEASED AND THE CLAIMANT, VENZALINE SHAW, NEE WELDON, IT APPEARING THAT THE DECEASED MARRIED THE CLAIMANT, ANNIE SHAW, NEE MANN, ON MARCH 7, 1927, AND ON NOVEMBER 1, 1932, MARRIED VENZALINE WELDON.

IN SUBSTANTIATION OF HER CLAIM, ANNIE SHAW HAS SUBMITTED A DULY AUTHENTICATED COPY OF A MARRIAGE LICENSE DATED MARCH 7, 1927, AUTHORIZING THE MARRIAGE OF HENRY SHAW, JUNIOR, AND ANNIE MANN, ON WHICH THE CERTIFICATE SHOWS THAT ON THE SAME DATE THE REVEREND GEORGE RUTLEDGE JOINED IN MATRIMONY HENRY SHAW, JUNIOR, AND ANNIE MANN. THE MARRIAGE APPEARS TO HAVE BEEN RECORDED MARCH 21, 1927, BY J. A. BRITT, ORDINARY, MCINTOSH COUNTY, GA. THE CLAIM IS FURTHER SUPPORTED BY AN AFFIDAVIT EXECUTED BY THE SAID J. A. BRITT, TO THE EFFECT THAT HE IS PERSONALLY ACQUAINTED WITH ANNIE SHAW AND KNEW HENRY SHAW PERSONALLY PRIOR TO HIS DECEASE, AND THAT THE CLAIMANT, ANNIE SHAW, AND THE HENRY SHAW NAMED IN PRIVATE ACT NO. 584, SUPRA, WERE MARRIED ON MARCH 7, 1927, AND WERE NEVER DIVORCED. IN CONNECTION WITH THE CLAIM OF ANNIE SHAW THERE WAS FILED, BY PAUL J. VARNER, A CLAIM AS GUARDIAN FOR FRANK SHAW, A MINOR SON BORN TO ANNIE MANN PRIOR TO HER MARRIAGE TO HENRY SHAW, WHO, IT IS ALLEGED, ACKNOWLEDGED AND LEGITIMATIZED THE SON BY THE MARRIAGE.

IN SUPPORT OF THE CLAIM OF VENZALINE SHAW THERE IS SUBMITTED A MARRIAGE LICENSE ON WHICH THE CERTIFICATE SHOWS THAT HENRY SHAW AND VENZALINE WELDON WERE JOINED IN MATRIMONY ON NOVEMBER 1, 1932, BY EDWIN W. DART, ORDINARY, GLYNN COUNTY, GA., THE MARRIAGE BEING RECORDED ON THE SAME DATE. IN FURTHER SUPPORT OF THE CLAIM AND TO ESTABLISH THE VALIDITY OF THE MARRIAGE OF VENZALINE SHAW AND THE DECEASED, THERE IS CITED THE CASE OF PARKS V. PARKS, ET AL, 173 GEORGIA 228, WHEREIN IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT:

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 A 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.

THE FACTS IN THE CITED CASE ARE NOT SUFFICIENTLY ANALOGOUS TO THE FACTS IN THE INSTANT CASE TO WARRANT A DETERMINATION THAT THE VALIDITY OF THE MARRIAGE OF HENRY SHAW AND VENZALINE SHAW IS CONTROLLED BY THE DECISION IN THAT CASE. MARRIAGE IS RECOGNIZED AS A STATUS OR CONTRACT WHICH ONCE SOLEMNIZED BY PARTIES COMPETENT TO ENTER INTO SUCH RELATIONSHIP, CONTINUES UNTIL DISSOLVED BY ANNULMENT, DIVORCE, OR DEATH OF ONE OF THE PARTIES. AMOUNT OF MISBEHAVIOR ON THE PART OF ONE OR BOTH OF THE PARTIES CAN OF ITSELF DISSOLVE A VALID PREEXISTING MARRIAGE AND IT IS WELL ESTABLISHED THAT AN ATTEMPTED REMARRIAGE OF ONE OF THE PARTIES BOUND BY A VALID EXISTING MARRIAGE IS NOT ONLY VOID (SEE SECTION 53-102-5 CODE OF GEORGIA, 1933) BUT SUBJECTS THE OFFENDER TO CRIMINAL PROSECUTION. IT HAS BEEN HELD, HOWEVER, THAT WHEN A MARRIAGE HAS BEEN REGULARLY SOLEMNIZED AND THE PARTIES LIVE TOGETHER AS MAN AND WIFE, THERE IS A PRESUMPTION THAT THE PARTIES HAD CAPACITY TO CONTRACT THE MARRIAGE AND OF THE EXISTENCE OF ALL OTHER FACTS NECESSARY TO RENDER THE MARRIAGE VALID, AND SUCH PRESUMPTION CONTINUES UNTIL THE TRUTH THEREOF IS DISPROVED. IN THE INSTANT CASE IT APPEARS THAT FROM THE DATE OF THE ALLEGED MARRIAGE OF HENRY SHAW AND VENZALINE WELDON, TO THE DATE OF HENRY SHAW'S DEATH THE PARTIES LIVED TOGETHER AS MAN AND WIFE, RAISING THE PRESUMPTION THAT THE MARRIAGE WAS A VALID ONE, AND PLACING THE BURDEN OF DISPROVING SUCH MARRIAGE ON ANY PARTY ALLEGING ITS INVALIDITY. THE LEGALITY OF THIS MARRIAGE IS CHALLENGED BY THE CLAIM OF ANNIE SHAW, AND IN SUPPORT OF SUCH CLAIM, IN ADDITION TO THE DULY AUTHENTICATED MARRIAGE CERTIFICATE, THERE IS SUBMITTED THE AFFIDAVIT OF J. A. BRITT, AS FOLLOWS:

J. A. BRITT, BEING FIRST DULY SWORN, DEPOSES AND SAYS:

"THAT HE IS ORDINARY OF MCINTOSH COUNTY, AND CHARGED BY LAW WITH THE ISSUING AND RECORDING OF MARRIAGE LICENSES:

"THAT ANNIE SHAW WAS MARRIED ON MARCH 7, 1927, TO HENRY SHAW, NOW DECEASED.

"DEPONENT FURTHER SAYS THAT HE IS PERSONALLY ACQUAINTED WITH ANNIE SHAW AND KNEW HENRY SHAW PERSONALLY AND SAYS THAT THE HENRY SHAW WHICH ANNIE SHAW MARRIED IS THE SAME HENRY SHAW NAMED IN PRIVATE ACT NO. 584, 74TH CONGRESS, APPROVED MAY 26, 1936.

"DEPONENT FURTHER SAYS THAT ANNIE SHAW WAS THE LAWFUL WIFE OF HENRY SHAW, DECEASED, AND THAT A DIVORCE WAS NEVER GRANTED, AND THAT SHE WAS HIS LAWFUL WIFE AT THE TIME OF HIS DEATH, AND THAT ONE VENZALINE SHAW, CLAIMING TO BE THE WIFE OF HENRY SHAW, IS NOT HIS LAWFUL WIFE BUT THE WIFE OF A BIGAMOUS MARRIAGE SUBSEQUENTLY ENTERED INTO IN ANOTHER COUNTY, AND THAT AS A MATTER OF LAW THE SAID VENZALINE SHAW IS NOT THE WIFE OF HENRY SHAW AND IS NOT AN HEIR OF HIS.'

THE STATEMENT CONTAINED IN THE AFFIDAVIT CONCERNING THE MARRIAGE OF HENRY SHAW AND ANNIE MANN IS SUPPORTED BY THE AUTHENTICATED COPY OF THE MARRIAGE CERTIFICATE SHOWING A CEREMONIAL MARRIAGE UNDER AUTHORITY OF A MARRIAGE LICENSE, HOWEVER, THE STATEMENT THAT A "DIVORCE WAS NEVER GRANTED" IS UNSUPPORTED BY ANY FACTS SHOWN TO BE WITHIN THE KNOWLEDGE OF THE AFFIANT, NAMELY, THAT ALL PLACES OF RESIDENCE OF EACH OF THE PARTIES SINCE THE DATE OF THEIR MARRIAGE IS KNOWN TO THE AFFIANT AND THAT THE RECORDS OF THE COURTS HAVING JURISDICTION OVER SUCH PLACES OF RESIDENCE DOES NOT SHOW THE GRANTING OF THE DIVORCE, OR FACTS OF A SIMILAR NATURE. THE FACTS PRESENTED IN SUPPORT OF THE CLAIM OF ANNIE SHAW DO, HOWEVER, RAISE A REASONABLE DOUBT AS TO THE LEGALITY OF THE MARRIAGE OF HENRY SHAW AND VENZALINE WELDON. SUCH DOUBT IS STRENGTHENED BY THE STATEMENT OF THE ATTORNEY FOR VENZALINE SHAW IN REFERENCE TO THE DISSOLUTION OF THE MARRIAGE OF HENRY SHAW AND ANNIE SHAW THAT "IN PERFECT CANDOR, WE DO NOT BELIEVE THAT IT CAN BE SHOWN THAT THERE WAS A DIVORCE PROCEEDINGS.'

RESPECTING THE CLAIM OF FRANK SHAW, BY HIS GUARDIAN, ON THE BASIS THAT HE IS THE LEGITIMATIZED SON OF HENRY SHAW AND ANNIE MANN (SHAW), IT IS ASSERTED ON BEHALF OF VENZALINE SHAW THAT UP TO THE TIME THE CLAIM WAS FILED THE CLAIMANT FRANK SHAW WAS KNOWN AS FRANK MANN, AND THAT THE SAID FRANK MANN "IS NOT A CHILD OF HENRY SHAW.' IT IS INDICATED THAT ANNIE MANN WAS THE MOTHER OF TWO ILLEGITIMATE CHILDREN, AND NO FACTS HAVE BEEN SUBMITTED ESTABLISHING THAT AFTER HENRY SHAW MARRIED ANNIE MANN HE LEGITIMATIZED THE SAID FRANK MANN BY ACKNOWLEDGING HIM AS HIS OWN SON.

ACCORDINGLY, ON THE RECORD BEFORE THIS OFFICE IT MUST BE HELD THAT NONE OF THE ABOVE CLAIMANTS HAS DEFINITELY ESTABLISHED THAT HE OR SHE IS AN HEIR OF HENRY SHAW WITHIN THE TERMS OF THE ACT AND, FOR THAT REASON, NO ALLOWANCE MAY BE MADE ON ANY OF THE CLAIMS.

IF THERE SHOULD BE A FINAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION AS TO WHO ARE IN FACT THE HEIRS OF THE DECEDENT--- OR THE PROPER DISTRIBUTEES OF HIS PERSONAL ESTATE--- UNDER THE LAWS OF GEORGIA, OR IF NEW AND MATERIAL EVIDENCE SHOULD BE ADDUCED, THE MATTER MAY AGAIN BE PRESENTED HERE FOR FURTHER CONSIDERATION.