Page images

of the title. He employed a skillful con- in the old deed of 1660, the forfeiture veyancer to trace that title back, if pos- of the estate now in the possession of sible, to the Book of Possessions. The John Smith. result of this investigation was that it When Mr. Smith heard of these facts, appeared that the parcel which he had he felt that a retributive Nemesis was himself owned, together with the addi- pursuing him. He lost the usual pluck tional parcel bought and added to it by and bull-dog determination with which Smith, had, in 1643 or 1644, when the he had been accustomed to fight at the Book of Possessions was compiled, con- law all claims against him, whether just stituted one parcel, which was then the or unjust. He consulted the spirits ; "possession" of one “Madid Engle," and they rapped out the answer that he who subsequently, in 1660, under the must make the best settlement he could name of "Mauditt Engles,” conveyed it with Mr. Ingalls, or he would infallibly to John Vergoose, on the express condi- lose all his fine estate, not only that part tion that no building should ever be which Mr. Ingalls had originally held, erected on a certain portion of the rear and which he had obtained for almost of the premises conveyed. Now it had nothing from the heirs of Benjamin Parso happened that this portion of these

sons, but also the adjoining parcel for premises had never been built upon be

which he had paid its full value, together fore the great fire, but Mr. Smith's new

with the elegant building which he had buildings had covered the whole of the

erected at a cost exceeding the whole forbidden ground. It was evident, then,

value of the land. Mr. Smith believed that the condition had been broken; that

in the spirits; they had made a lucky the breach had occurred so recently that

guess once in answering an inquiry from the right to enforce a forfeiture was not

him; he was getting old; he had workbarred by the statute, and could not be

ed like a steam engine during a long deemed to have been waived by any neglect or delay; and that consequent

and busy life, but now his health and ly, under the decision in Gray v. Blanch

his digestion were giving out; and when ard, 8 Pick. 281, a forfeiture of the es

the news of Mr. Ingalls' claim reached tate for breach of this condition could

his ears, he became, in a word, demor

alized. Ile instructed his lawyer to 110w be enforced if the true parties entitled by descent and by residuary de

make the best settlement of the matter vises under the original "Engle" or "En

that he could, and a settlement was soon gles” could only be found. It occurred

effected by which the whole of Mr. to Mr. Ingalls, however, that this name

Smith's parcel of land in the burnt dis"Engles" bore a certain similarity in trict was conveyed to Mr. Ingalls, who sound to his own; and as he had heard gave back to Mr. Smith a mortgage for that during the early years after the set- the whole amount which the latter had tlement of this country, great changes expended in the erection of his building, in the spelling of names had been together with what he had paid for the brought about, he instituted an inquiry parcel added by him to the original lot. into his own genealogy, the result of Mr. Smith, not liking to have anything which was, in brief, that he found he to remind him of his one unfortunate could prove himself to be the identical speculation, soon sold and assigned his person entitled, as heir of Madid Engle, mortgage to the Massachusetts Hospital to enforce, for breach of the condition Life Insurance Company; and as the well-known counsel of that institution tory of his title, those lawyers who are has now examined and passed the title, known as "conveyancers" are by no we may presume that there are in it means happy when they contemplate that no more flaws remaining to be discov- history, for it has tended to impress upered.

on them how full of pitfalls is the In conclusion, we may say that Mr. ground upon which they are accustomed William Ingalls, after having been for to tread, and how extensive is the knowlsome ten years a reviler of the law, es- edge and how great the care required of pecially of that portion of it which re- all who travel over it; and they now lates to the title to real estate, is now look more disgusted than ever, when, as inclined to look more complacently upon so often happens, they are requested to it, being again in undisturbed and undis- “just step over” to the Registry and puted possession of his old estate, now "look down" a title; and are informed worth much more than before, and in that the title is a very simple one, and the receipt therefrom of an ample in- will only take a few minutes; and that come which will enable him to pass the So-and-so, "a very careful man," did it remainder of his days in comfort, if not in less than half an hour last year, and in luxury. But, though Mr. Ingalls is found it all right, and that his charge content with the final result of the his- was five dollars.

The Law of Survivorship in a Common Disaster


of the Milwaukce Bar

An Address Delivered before the Students of Law at Marquette University, Milwaukee, Wis.

AGROTESQUE and grewsome in:

was dead, while another reporter ? incident occurred in Wales towards forms us that the son appeared, on acthe close of the reign of Queen Eliza- count of “his shaking his legs,” to have beth. A father and his son attainted survived his father. of felony were sentenced to be hanged In the year 1572 a woman named at the same time in the same cart. This Bobie, living in France, was murdered, took place. The widows of both felons with her two young children, the elder demanded dower, and it became neces- under eight years. The motive of the sary to decide which of the two hus- assassins was robbery. Whether the bands survived. In the result we are mother or her offspring first received not especially concerned, and, indeed, the fatal blows became a question very the result cannot now be discovered,

necessary to decide.3 for one of the reporters records that About the year 1767 the following the father moved his feet after his son

2 Broughton v. Randall, Cro. Eliz, 302. 1 Broughton v. Randall. Xoy, 64.

3 Pothier, Traité, de Sexes, c. 3, 31.

[ocr errors]


state of facts aroused the earnest at- It will be observed that in the mattention of the legal fraternity in Eng- ter of evidential susceptibility the last land: An English general, Stanwix by incident differs widely from the other name, sailed from Dublin for London, two. In these there is an opportunity accompanied by his wife and his only for the presentation to a jury of testichild, an adult daughter of an earlier mony as to survivorship. Spectators marriage. During the voyage the ves- could make oath as to which victim sel, with its passengers and crew, was of the noose exhibited signs of vitality lost in a storm. General Stanwix was for the longer time. In the case, too, the owner of considerable estate, and of Madame Bobie, those who discoverdied intestate. His nearest remaining ed the dead bodies of the mother and relative was a nephew, his sister's of her children might well have seen child, Charles Connor by name. His in the disposition of the limbs, the daughter's nearest remaining relative character of the wounds, the general

an uncle, her mother's brother, environment of the scene, some indicanamed Holmes. There was,

there tions upon which a judgment of priorcould be, no testimony as to priority ty of death might have been reached. of death between the father and his But in cases like that of General Standaughter. Had there been witnesses wix and his family there is absolutely of the shipwreck, survivors of the ca- nothing for the senses to seize; there tastrophe, who could have testified to can be only the play of fancy, the reign circumstances from which could be of conjecture and surmise. drawn an inference of survival for even The multiplicity of casualties attendthe period of a lightning flash, the de- ing modern business intercourse and scent of the property would have been modern extended journeys, the calamieasily determinable. But the vessel ties of earthquake and conflagration, sank solitary into the abysses of wa- have rendered necessary some other ters, its disasters a perpetual secret. disposition of cases like these, less exLitigation between the two rival claim- peditious and facile, but more satisants ensued. Charles Fearne, the eru- factory and logical, than Lord Mansdite author of Contingent Remainders field's method of advising litigants out and Executory Interests, prepared of court. There have arisen three difbriefs, equally persuasive and equally ferent methods of disposing of cases ingenious, upon both sides of the con- where no light can be thrown upon troversy.* Lord Mansfield, before the order of death, or where the glimwhom the cause was finally argued, mer is too feeble and fleeting for any recommended that it be compromised substantial judgment. To bring these out of court, since he knew no legal to your attention is now my purpose. principle upon which he could decide 1. One of these methods is to decide it. This was done.5

dogmatically that all the related vicThese three disasters, widely apart tims of the calamity perished at the in time, greatly differing as to facts, same instant, so that no one of them readily lend themselves as an introduc- could receive or transmit succession. tion and as an illustration of our theme. Such a doctrine is embodied in the

codes of Holland, Austria, and Prussia 4 Fearne's Posthumous Works, 38.

and in the ancient code of Denmark. 5 See Wright v. Sarmuda, 2 Phillimore, 261, note a; Rex v. Hay, 1 W. Blackstone, 640. In India the Mohammedan law of inheritance is practically the same—that interest in the chattels would have all the relations die at the same in- vested, would have been entitled to the stant, so that the property of each insurance. Had the property been depasses to his living heirs without vest- stroyed before the testator, the benefit ing in any of the commorientes. The of the policy would not have passed to common law of England, which waver- the legatee, but would have constituted doubtfully before crystallizing into ed a part of the testator's estate. But its present shape, shows instances of both chattels and testator perished tothe tendency to this doctrine. Thus gether. As, in order for the legatee's in 178+ Lord Thurlow decided that recovery, there must have been at least if two persons, being joint tenants, an instant of time in which ownership perish by one blow, the estate will re- vested in him, and as there was no main in joint tenancy in their respec- such instant of time, the avails of the tive heirs-a decision equivalent to insurance policy could not benefit the saying that both died at the same time. legatee, but were a part of the testa

So in a case ? decided at about the tor's residuary estate. same period by Sir William Wynne it

2. A second method of disposing of became important to know whether a

the problem of survivorship in a comfather or his four children, the oldest mon disaster is by the invocation of not eight years of age, the longer-sur- presumptions. A presumption, as you vived the perils of a shipwreck. The know, is a rule of law that courts shall judge deemed it—to quote his lan- draw a particular inference from a parguage—“the most rational presump

ticular factor from particular evition that all died together and that dence, unless and until the truth of none could transmit rights to another.” such inference is disproved. That a

A whimsical extension of the prin- married woman committed a theit in ciple of contemporaneous destruction her husband's presence raises a prewas applied as between human life and sumption that she acted under his copersonal property in a case decided by ercion. So a child born in lawful wedVice Chancellor Parker in 1851.8 Dan- lock is presumed to be the husband's iel Friend by his will specifically be

child. queathed certain chattels. Then he Presumptions as to survivorship took these chattels and sailed for In- were common in the old Roman law, dia, having first insured them. On the

are found in the code of Justinian, in return voyage, he, the passengers and

the Code Napoléon, in the judicial syscrew, and the chattels, were lost at

tems of the other Latin countries of sea. The insurance money was paid Europe, in the code of the Territory to the executors of Friend, and the leg- of Orleans at the time of its cession to atee of the chattels claimed it. The

the United States, and in the codes oi court reasoned somewhat as follows:

Louisiana and California.

California. Here Had the testator been destroyed before

some instances of these presumptions, the chattels, the legatee, in whom an

which it will be observed are not in

favor of contemporaneous demise: 6 In the case of Bradshaw v. Toulmin, 2 Dick- If a parent and his son perished in ens, 633.

7 Wright v. Sarmuda, 2 Phillimore, 261, note the same battle or shipwreck, the son a: also under name Wright v. Netherwood, 2 Salkeld, 593, note (Evans' edition).

above the age of puberty was presum& Durrant v. Friend, 5 De Gex & Swale, 343. ed to have survived his father; under


that age, to have predeceased him. A somewhat free rendering from the This was upon the idea that in the French of the important articles on the former case the son was usually strong- subject follows: er, in the latter weaker, than his father. If several individuals respectively enSo if persons perishing in the same titled to inheritance from one another disaster were all under fifteen, the should die by the same event, without presumption of survivorship was with

any one being able to ascertain which the elder; if all were over sixty, with died first, the presumption of survivorthe younger. Similarly, the wife was ship is determined by the circumstancpresumed to have yielded first to the

es of the fact; but, these being wantcommon peril.

ing, by the condition of age and sex. The law of France, anterior to the

If those who thus died were under First Empire, adopted other presump

fifteen years of age, the eldest will be tions as necessity arose. The Parle- presumed to have survived; if all were ment of Paris, deciding questions of

above sixty, the youngest will be so heirship growing out of the massacre presumed; if some were under fifteen of St. Bartholomew's Day, acted on

and some above sixty, the former will the presumption that older persons be so presumed. were massacred before younger per

If those who thus died were between sons and children, on the theory that

fifteen and sixty years of age, the prethe assassins would first destroy those

sumption of survivorship is with the most able to offer resistance.

male as against the female, if the difThis last-mentioned presumption was

ference of age between them does not applied in the case of Madame Bo

exceed a year. If those who thus died bie, to which your attention has al

were of the same sex, the presumption ready been called. The court found

of survivorship follows the order of that the mother died before her infant

nature, and the younger must be prechildren, upon the theory that the as

sumed to have outlived the elder. sassins, whose aim was robbery, would

That it may not be supposed that first slaughter the one most able to re

presumptions like these are alien in sist their plans. I do not regard this

spirit to American jurisprudence, I as a "tremulous," an illusory, or an in

quote the rules embodied in the Civil tangible presumption. Without question Code of California, one of the most the aim of the robbers would first

progressive and enlightened of our be directed against the mother. The

states: feeble infants could well await their

When two persons perish in the leisure. Certainly such a presumption

same calamity, such as a wreck, a batis no more "violent” than that enters

tle, or a conflagration, and it is not tained by Sir William Wynne in the

shown who died first, and there are no case of Wright v. Sarmuda, above

particular circumstances from which it quoted, who thought it “rational” to

can be inferred, survivorship is prepresume that a father and four little

sumed from the probabilities resulting children yielded up their breath in a

from the strength, age and sex, accordfamily concert. Under the Napoleonic sway

ing to the following rules:

the French adopted precise and systematic

9 The original French is accessible in Mason rules governing doubtful cases of death. V. Mason, 1 Merivale, 308.

« PreviousContinue »