28 Colo. 308 | Colo. | 1901
delivered the opinion of the court.
By the record in this case two propositions are presented for determination, upon which the right of the parties depend:
1. Does the evidence establish that appellee was not the wife of deceased? If this is answered in the negative, then,
2. Were her rights divested by the surrender of the cer
Appellee having been named as the beneficiary in the original certificates, and designated therein as the wife of deceased, she is presumed to be a legal one, and bear the .relation to the insured designated — Knights of Honor v. Davis, 26 Colo. 252; so that to the extent that the rights of appellant are dependent upon the fact that appellee was not the wife of deceased, the burden of proof rested with her to establish this issue by a preponderance of the evidence. On this subject the first wife testifies to the effect that she was married to deceased in 1876. She took no steps herself to obtain a divorce, and states that no papers for that purpose were ever served upon her. This is the. only testimony tending to establish that the marriage relation between herself and deceased was not dissolved, as the evidence of the other witnesses on behalf of appellant on this subject is immaterial. As against this testimony we have the undisputed evidence to the fact that a marriage ceremony was regularly solemnized between appellee and deceased, and the question squarely presented is, does the proof of the existence of the former marriage relation of deceased and the testimony of the former wife, establish that the marriage of appellee was invalid? No man is presumed to do an unlawful act. When a marriage has been shown, the law raises a strong presumption in favor of its legality. By some of the authorities this presumption is said to be one of the strongest known to the law. Its strength increases with the lapse of time. This presumption arises because the law presumes morality and not immorality, and that every intendment is in favor of matrimony. Lampkin v. Ins. Co., 11 Colo. App. 249; 2 Nelson Divorce and Separation, § 580; Boulden v. McIntire, 21 N. E. Rep. 445; In re Rash's Estate, 53 Pac. Rep. 312; Teter v. Teter, 101 Ind. 129; Johnson v. Johnson, 114 Ill. 611.
This presumption applies with peculiar force in favor of
Six years elapsed between the time deceased left his first wife in Pennsylvania before he married appellee in Colorado It appears that when he separated from his wife in Pennsylvania, he believed her guilty of conduct of a character which would entitle him to a divorce. Certainly, since that time, according to her own statements, inconsistent as they are, she has been; and this, two years before he married appellee. It is not impossible that he might have instituted proceedings for a divorce and his first wife not have received a copy
There is nothing in the by-laws in question which would indicate that it was the intention of the association that it should affect policies theretofore issued. The judgment of the district court is affirmed.
Affirmed.