Baer v. De Berry

• Citation: 31 Ill.App.2d 86,175 N.E.2d 673
• Decision Date: 26 May 1961
• Docket Number: Gen. No. 48344
• Parties: Raymond G. BAER et al., etc., Plaintiffs below, v. Timothy DE BERRY, Jr., Defendant below-Appellant, Evelyn Marie De Berry, Hattie De Berry and Lucile Bravo De Berry, Defendants below-Appellees.
• Court: United States Appellate Court of Illinois

Page 673

175 N.E.2d 673

31 Ill.App.2d 86

Raymond G. BAER et al., etc., Plaintiffs below, v. Timothy DE BERRY, Jr., Defendant below-Appellant Evelyn Marie De Berry, Hattie De Berry and Lucile Bravo De Berry, Defendants below-Appellees.

Gen. No. 48344.

Appellate Court of Illinois, First District, First Division.

May 26, 1961.

Heineman, Marks, Simons & Houghteling, Chicago, for appellant.

Conrad G. Verges, Chicago, for appellees.

MURPHY, Justice.

This is an interpleader action, commenced by the trustees of a union-management welfare plan, because decedent's three wives and a son of his first marriage each claimed the plan death benefit. The chancellor directed payment to the third wife, and the son appeals.

Timothy DeBerry died October 18, 1958, a resident of Chicago, Illinois. He had been married three times. His first marriage was to Hattie DeBerry Mitchell, in 1931 in Mississippi. His second marriage was to Lucile Bravo DeBerry, in 1940 in California. His third and last marriage was to Evelyn Marie DeBerry, in 1954 in Illinois. The son, Timothy, Jr., was born of the first marriage in Tennessee in 1933.

As a milk wagon driver, Timothy, Sr., was a 'covered participant' in the 'Milk Dealers'-Dairy Employes' Welfare Plan,' and had the privilege of designating a beneficiary of a $5,000 benefit payable at his death. He designated 'Evelyn Marie DeBerry * * * wife,' as the primary beneficiary, and Timothy, Jr., 'son' as the secondary beneficiary of the death benefit.

The form used for the purpose of designating the beneficiaries bears the signature of the decedent and is dated January 16, 1956. The form provisions include: 'For the purposes of the application of the death benefit provisions of the Plan, a covered participant may designate his spouse, child or children as beneficiary or beneficiaries. If, however, there are no living spouse, child or children, the covered participant for the purpose of the distribution of the death benefit, can designate anyone as his beneficiary.'

As the three wives and the son each demanded payment of the death benefit, the trustees of the plan filed an interpleader complaint, in order that the court might determine to whom the death benefit should be paid. The first and second wives each claimed the fund as the lawful living spouse. The third wife, Evelyn Marie DeBerry, claimed as the lawful living spouse and the designated 'primary beneficiary.' The son asserted that Evelyn Marie DeBerry was not the lawful wife of Timothy, Sr., at the time of death and, therefore, not eligible as a beneficiary, and, as the 'secondary beneficiary,' he was entitled to the fund.

The chancellor found that Timothy DeBerry 'was not shown by the record' to have been divorced from his first and second wives; that he intended Evelyn Marie DeBerry to be the primary beneficiary of the death benefit; and that she is entitled to take 'the death benefits as provided by the Plan.' The decree ordered the payment of the death benefit to Evelyn Marie DeBerry, less court costs and fees. The instant appeal is that of Timothy DeBerry, Jr.

If Evelyn Marie DeBerry was not the lawful wife of Timothy, Sr., at his death, she was not eligible to receive the death benefit because she did not come within any one of the welfare plan classes to whom payment of benefits may be designated by a participant. Mical v. International Workers Order, Inc., 1945, 326 Ill.App. 398, 400, 62 N.E.2d 21; Barnett v. Brotherhood of Railroad Trainmen, 1927, 243 Ill.App. 219, 223; Columbian Circle v. Auslander, 1922, 302 Ill. 603, 606, 135 N.E. 53. Therefore, our principal question is whether Evelyn Marie DeBerry was the lawful wife of Timothy, Sr., at death.

In conflicting marriages, it is the rule in this state that a presumption of validity operates in favor of the last marriage, which is not overcome by mere proof of a prior marriage, and that one of the persons thereto had not obtained a divorce. 26 I.L.P.Marriages § 34. Where the celebration of a marriage is shown and also a prior marriage, the death or divorce of the former spouse will be presumed, and the burden of proof is on the party asserting the invalidity of the last marriage. Winter v. Dibble, 1911, 251 Ill. 200, 206, 95 N.E. 1093; In re Estate of Dedmore, 1930, 257 Ill.App. 519, 522; Miller v. Williams, 1959, 22 Ill.App.2d 360, 161 N.E.2d 42.

The presumption in favor of the validity of the third marriage is conceded, but it is argued that the evidence in this record is sufficient to rebut the presumption that there had been a divorce from the first wife, Hattie, because 'evidence which renders the existence of the negative probable is sufficient in the absence of proof to the contrary' (In re Estate of Panico, 1932, 268 Ill.App. 585), and that the burden of proof was shifted to Evelyn Marie DeBerry to establish, by direct evidence, the lawful dissolution of the first and second marriages prior to the third marriage.

Hattie Mitchell (first wife) testified she married Timothy, Sr., in Mississippi in 1931, and he left her in Tennessee in 1936 and went to California. He wrote her and sent her money from different places in California, principally from Sacramento. He returned to her in Tennessee about 1940 or 1941 and, after living with her for a short time, he went to Chicago, where he lived until his death, except for Army service in 1943. During his Army service, she received an allotment for herself and Timothy, Jr. She heard of his second marriage in 1940 and, on inquiry by her, he denied it. She married Earnest Mitchell in Crown Point, Indiana, in June, 1948, and thereafter lived with Mitchell in Chicago. Timothy, Jr., resided with them from time to time.

Hattie Mitchell denied divorcing Timothy, Sr., or that he divorced her. She did not recall signing an Indiana marriage application on June 19, 1948, and denied a statement appearing on it that she was divorced from 'Tim DeBerry' about 1940 in Mississippi. She admitted that the name 'Hattie Allen,' signed to the application, was her maiden name; that she used it at the time of her marriage to Mitchell. She testified that when she married Mitchell in 1948, she was aware that she was not divorced from Timothy, Sr. She remarried Mitchell in December, 1959.

The testimony of Lucile Bravo DeBerry (second wife) shows that she lives in California; that she married Timothy, Sr., in October, 1940, in Tulare, California; that they lived together for one or two years in Tulare; that he left her, and she never heard from him thereafter and did...