
    KIN OKUBO, SOMETIMES KNOWN AS KIN SATO, v. TOSAKU SATO.
    No. 1731.
    Appeal From Circuit Judge First Circuit.
    Hon. J. R. Desha, Judge.
    Submitted March 30, 1927.
    Decided April 5, 1927.
    Perry, C. J., Banks and Parsons, JJ.
    
      Marriage — annulment—presumptions.
    In a suit for the annulment of a marriage tbe presumption is that tbe marriage is valid and tbe burden is upon tbe libelant to prove tbe incompetency of tbe libelee to enter into tbe marriage.
    In sucb a case tbe presumption of tbe continuance of life in an earlier wife of tbe libelee yields, at least after a lapse of twenty-four years, to the presumption of innocence of tbe libelee of the commission of any crime and to tbe presumption of tbe validity of tbe marriage and tbe legitimacy of tbe children.
   OPINION OP THE COURT BY

PERRY, C. J.

This is a suit for annulment of marriage based upon the ground that at the time when the libelant and the libelee were married the libelee had a prior wife living and undivorced. The libelee in his answer admitted that he was married to the libelant on March 15, 1916, and that there are two children, issue of the marriage, one a girl now of the age of seven and the other a boy now of the age of four. In proof of the allegations of her complaint the libelant called the libelee to the witness stand. His testimony was that in November, 1899, he married a first wife in Japan and came with her to Hawaii; that she returned to Japan about twenty-four years ago; that prior to her return a paper which he called a divorce had been executed; that since her return to Japan lie has not at any time furnished her any support and has “never had correspondence with her”; that he has never heard of the first wife’s death and does not know whether she is still alive or. whether she was alive in 1916; that when she left for Japan she was twenty years old and in good health. On further examination it was made clear by the libelee’s testimony that he had not at any time been legally divorced from his first wife. A finding that the first wife, if living, is still undivorced would be required by the evidence.

There was no other evidence, direct or indirect, tending to show whether at the time of the second marriage the first wife was living or dead. The only evidence that can be referred to as possibly supporting the decree of annulment rendered herein by the trial judge would be the presumption from the fact of a former marriage that the first wife continued to live until the contrary should be shown. It is true that under some circumstances courts may indulge in the presumption of the continuance of life. In this case, however, there is a presumption of the validity of the later marriage and a presumption that the husband was not guilty of the crime of bigamy or of adultery and a further presumption that the two children of the marriage are legitimate. The presumption of continuance of life varies in strength in accordance with the circumstances of each particular case. When, as in this instance, the wife has not been heard from for twenty-four years and had not been heard from for fourteen years at the time of the second marriage, the presumption is at best very much weaker than if the person in question had been shown to have been living, for example, a' year ago. Certainly under the circumstances of this case the presumption of the continuance of life must yield to the presumption of validity, innocence and legitimacy. This suit constitutes a direct attack upon the marriage of the libelant and the libelee. The burden, as in ordinary cases, is upon the libelant to prove the essential allegations of her petition. The marriage was performed in all respects in accordance with the requirements of our laws and must be presumed to have been lawful in the absence of proof, clear and convincing, of lack of competency on the part of the libelee to enter into the marriage. As has often been stated, there is no legal presumption so highly favored as that of innocence. 1 Jones on Evidence, 2d ed., Sec. 358. “It is generally held in civil cases that where there are other and conflicting presumptions, the presumption in favor of marriage shall prevail. Thus the presumption of life or of the continuance of a marriage will not prevail over the presumption that a subsequent marriage is valid and that the parties' are innocent of bigamy.” 19 A. & E. Ency. L. 1203. “When there has been a formal marriage, according to legal requirements, the law will presume the competency of the parties to enter into the marriage contract, and will presume that any former marriage of either of the parties was dissolved by death or divorce. This is based on the desire of the law to protect innocence, morality and legitimacy rather than presume the continuance of the first marriage. When a marriage is proved according to statutory forms, it will be presumed to be legal until shown to be illegal.” Lopez v. Ry., 222 S. W. (Tex.) 695, 697. “The law ordinarily presumes a continuation of life until seven years have elapsed after a person has been last heard of. But this presumption is not a conclusive one; and, where that presumption would, as in the present case, render the party against whom it is raised guilty of a bigamous marriage, and would stamp his child as a bastard, the presumption of innocence of crime overcomes that of continuance of life, even though seven years have not elapsed.” Tyll v. Keller, 120 Atl. (N. J.) 6, 7. To the same effect are Murchison v. Green, 128 Ga. 339 (11 L. R. A., N. S., 702, 703, 704); Vreeland v. Vreeland, 34 L. R. A., N. S., (N. J.) 940, 944; Hunter v. Hunter, 31 L. R. A. (Cal.) 411, 414; 38 C. J. 1329; Smith v. Fuller, 16 L. R. A., N. S., (Iowa) 98, n.

Lightfoot & Lightfoot for libelant.

Heen & Godbold for libelee.

The decree appealed from is reversed and set aside and the cause is remanded to the trial judge for the admission of further evidence, if any is offered, and for such further proceedings as may be appropriate not inconsistent with this opinion.  