Citing the presumption favoring the validity of second marriages, the dissenting judge would have affirmed the district court because “[p]laintiff's direct evidence failed to establish the existence of a valid prior marriage as a result of the early 1997 ceremony.” Id. at ––––, 719 S.E.2d at 195–96 (citing Kearney v. Thomas, 225 N.C. 156, 163–64, 33 S.E.2d 871, 876–77 (1945)). Defendant appeals on the basis of the dissenting opinion.

“Upon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage.” Kearney v. Thomas, 225 N.C. 156, 163, 33 S.E.2d 871, 876 (1945). The trial court found that there was insufficient evidence to find Kareem “had the status of either ‘an ordained minister’ or a ‘minister authorized by his church’ ” ... or that “Kareem was a magistrate.”

" "Upon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage." Kearney v. Thomas, 225 N.C. 156, 163, 33 S.E.2d 871, 876 (1945). The trial court found that there was insufficient evidence to find Kareem "had the status of either `an ordained minister' or a `minister authorized by his church'" . . . or that "Kareem was a magistrate."

It is conceded that both marriages took place and that both wives survived the insured; and no evidence was offered that the first marriage was terminated by a divorce before the second ceremony was performed. The judge, however, applied the North Carolina Rule established in Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871, that there is a presumption of law that a marriage ceremony having taken place, was legally performed and resulted in a valid marriage, and that one who attacks the validity of the marriage has the burden of proving the contrary. Accordingly the jury was instructed that the burden of proof was upon Ila Davis, the sister of the insured, to satisfy them by the greater weight of the evidence that the first marriage was still in effect and had not been dissolved by divorce when the second took place; and that if she failed to do so, they should find the issue in favor of the second wife. No exception to the charge was taken and the appeal is based upon the refusal of the judge to direct a verdict in the plaintiff's favor.

Proof of the prior marriage alone is not sufficient to overcome the presumption of validity of the subsequent marriage. Kearny v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945). However, North Carolina does ot require conclusive proof to overcome this presumption.

However, the North Carolina Court has declared that this burden may be carried by any of the ordinary modes of proof. In Kearney v. Thomas, 225 N.C. 156, 163, 33 S.E.2d 871, 876, it is declared: "While the burden was upon the plaintiffs to establish the invalidity of the second marriage, it was competent for them to carry that burden by any of the ordinary modes of proof, whether by direct evidence of fact * * *, or by presumptions recognized by the rules of evidence or established by statute * * *." This rule was applied by the Court of Appeals of this Circuit in Page v. United States, 193 F.2d 936. The opinion of Judge Soper contains this statement at page 937 of 193 F.2d: "We think that this evidence was sufficient to justify the submission of the issue to the jury.

The question presented is whether the plaintiff has offered sufficient competent evidence to require the submission of the controversy on the determinative issue as an open question. From an examination of the report of the testimony set out in the record, it is apparent that the evidence on the principal question at issue was not all one way. It was conflicting in material respects. In Kearney v. Thomas, 225 N.C. 156 (165), 33 S.E.2d 871, 877, it was said: "Where the evidence is contradictory, obviously no instruction can be given hypothecated on a finding of fact by the jury, which will have the effect of a directed verdict either way." Having admitted in his pleading the execution and delivery of the notes in suit, the burden was on the plaintiff to offer evidence tending to show non-liability thereon, and if the testimony on that point, considered in the light most favorable for him, afforded any competent evidence in support of his contention, he was entitled to have it submitted to the jury with appropriate instructions from the court as to all material phases of the case presented by such evidence.

Our Supreme Court has stated: "[u]pon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage." Kearney v.Thomas, 225 N.C. 156, 163, 33 S.E.2d 871, 876 (1945). The burden of proof rests upon plaintiff to prove by the greater weight of the evidence grounds to void or annul the marriage to overcome the presumption of a valid marriage.

This conclusion was based upon the same basic evidence as in the Clerk's order. The law of burden of proof of a second marriage was affirmed in Chalmers v. Womack 269 N.C. 433, 436, 152 S.E.2d 505, 507 (1967), when it quoted with approval from Kearney v. Thomas, 225 N.C. 156, 163-64, 33 S.E.2d 871, 876-77 (1945). "`"A second or subsequent marriage is presumed legal until the contrary be proved, and he who asserts its illegality must prove it.

Nor need we discuss the presumption arising in favor of the validity of a second marriage when it appears that a person has contracted two successive marriages. See generally, Chalmers v. Womack, 269 N.C. 433, 152 S.E.2d 505 (1967); Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945). In summary, defendant has failed to establish that Margaret Alford was his common law wife pursuant to the laws of Pennsylvania. It follows therefore that G.S. 8-57 did not preclude Margaret from testifying against defendant.