dissenting in part:
I cannot agree that the plaintiff is entitled to recover allowances for a dependent after the time the Government discontinued payments to him therefor. In order to do so, he must show that he had a lawful wife. The statute says a man is entitled to certain allowances if he had a lawful wife. The burden is on him to show that he had one. The Government is not under the burden of showing that he did not have one.
The proof shows that plaintiff’s alleged wife had formerly married Orville E. Perring, and that on January 22, 1941, she filed a divorce action against him. On November 17, 1941, the court entered an interlocutory judgment of divorce, providing that at the expiration of one year a final judgment would be entered if requested by one of the parties. Prior *659to tbe expiration of this one year period, about six months after the entry of the interlocutory judgment, plaintiff married Mrs. Perring. Hence, he married her while she was still the wife of Orville B. Perring, unless Perring had died in the meantime.
Plaintiff has introduced no proof to show that Perring was dead. If she was Perring’s wife at the time of her marriage to Briggs, then her marriage to him was void, and she did not become Briggs’ lawful life. In order to bring himself within the statute, plaintiff had to show that he had a lawful wife, and it was, therefore, necessary for him to show that Perring was dead at the time he married Mrs. Perring. The burden is not on the defendant to show that Perring was not dead.
It is, of course, true, as the majority opinion says, that the marriage between Briggs and Myrtle L. Perring is presumed to have been a valid marriage, but this presumption, it seems to me, is rebutted by the fact that prior to the expiration of the one-year period, before which final judgment of divorce from Perring could not have been entered, the marriage between Myrtle Perring and Briggs took place. Presumptively this made Briggs’ marriage to her void. In order to rebut this presumption, the burden was on Briggs to show that Perring was dead.
It having been proven that Perring was living on January 22.1941, it is to be presumed that he was still living on May 11.1942, and plaintiff has introduced no proof to rebut this presumption. Presumably Perring was living when his wife married Briggs. If he was, then she did not become Briggs’ “lawful wife.”
The burden was not on the defendant to show that the marriage between Myrtle L. Perring and Virgil O. Briggs was invalid. The burden is on the plaintiff to show that it was valid in order to show that he had a lawful wife, and this burden I do not think he has carried until he has shown Orville B. Perring was dead at the time he married Mrs. Perring.
I must, therefore, respectfully dissent from that part of the opinion of the majority which holds that plaintiff is entitled to recover the allowance for a dependent from June *66030, 1944, the date the Navy discontinued payment of the allowance, to March 7, 1946, the date of his transfer to the Fleet Reserve, which amounts to $1,679.85. I agree that he is entitled to recover $1,440.40, the amount which was paid him but which was later deducted from his pay.
Chief Judge JoNes concurs in the foregoing opinion.