Page images
PDF
EPUB

of the title. He employed a skillful conveyancer to trace that title back, if possible, to the Book of Possessions. The result of this investigation was that it appeared that the parcel which he had himself owned, together with the additional parcel bought and added to it by Smith, had, in 1643 or 1644, when the Book of Possessions was compiled, constituted one parcel, which was then the "possession" of one "Madid Engle," who subsequently, in 1660, under the name of "Mauditt Engles," conveyed it to John Vergoose, on the express condition that no building should ever be erected on a certain portion of the rear of the premises conveyed. Now it had so happened that this portion of these. premises had never been built upon before the great fire, but Mr. Smith's new buildings had covered the whole of the forbidden ground. It was evident, then, that the condition had been broken; that the breach had occurred so recently that the right to enforce a forfeiture was not barred by the statute, and could not be deemed to have been waived by any neglect or delay; and that consequently, under the decision in Gray v. Blanchard, 8 Pick. 281, a forfeiture of the estate for breach of this condition could now be enforced if the true parties entitled by descent and by residuary devises under the original "Engle" or "Engles" could only be found. It occurred to Mr. Ingalls, however, that this name. "Engles" bore a certain similarity in sound to his own; and as he had heard that during the early years after the settlement of this country, great changes in the spelling of names had been brought about, he instituted an inquiry into his own genealogy, the result of which was, in brief, that he found he could prove himself to be the identical person entitled, as heir of Madid Engle, to enforce, for breach of the condition

in the old deed of 1660, the forfeiture of the estate now in the possession of John Smith.

When Mr. Smith heard of these facts, he felt that a retributive Nemesis was pursuing him. He lost the usual pluck and bull-dog determination with which he had been accustomed to fight at the law all claims against him, whether just or unjust. He consulted the spirits; and they rapped out the answer that he

must make the best settlement he could with Mr. Ingalls, or he would infallibly lose all his fine estate, not only that part which Mr. Ingalls had originally held, and which he had obtained for almost

nothing from the heirs of Benjamin Parsons, but also the adjoining parcel for which he had paid its full value, together with the elegant building which he had erected at a cost exceeding the whole value of the land. Mr. Smith believed in the spirits; they had made a lucky guess once in answering an inquiry from him; he was getting old; he had worked like a steam engine during a long and busy life, but now his health and his digestion were giving out; and when the news of Mr. Ingalls' claim reached his ears, he became, in a word, demoralized. He instructed his lawyer to make the best settlement of the matter that he could, and a settlement was soon effected by which the whole of Mr. Smith's parcel of land in the burnt district was conveyed to Mr. Ingalls, who gave back to Mr. Smith a mortgage for the whole amount which the latter had expended in the erection of his building. together with what he had paid for the parcel added by him to the original lot. Mr. Smith, not liking to have anything to remind him of his one unfortunate speculation, soon sold and assigned his mortgage to the Massachusetts Hospital Life Insurance Company; and as the

well-known counsel of that institution has now examined and passed the title, we may presume that there are in it no more flaws remaining to be discovered.

In conclusion, we may say that Mr. William Ingalls, after having been for some ten years a reviler of the law, especially of that portion of it which relates to the title to real estate, is now inclined to look more complacently upon it, being again in undisturbed and undisputed possession of his old estate, now worth much more than before, and in the receipt there from of an ample income which will enable him to pass the remainder of his days in comfort, if not in luxury. But, though Mr. Ingalls is content with the final result of the his

tory of his title, those lawyers who are known as "conveyancers" are by no means happy when they contemplate that history, for it has tended to impress upon them how full of pitfalls is the ground upon which they are accustomed to tread, and how extensive is the knowiedge and how great the care required of all who travel over it; and they now look more disgusted than ever, when, as so often happens, they are requested to "just step over" to the Registry and "look down" a title; and are informed that the title is a very simple one, and will only take a few minutes; and that So-and-so, "a very careful man," did it in less than half an hour last year, and found it all right, and that his charge was five dollars.

The Law of Survivorship in a Common Disaster

By Mr. WILLIAM W. WIGHT

of the Milwaukee Bar

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

A

GROTESQUE and grewsome incident occurred in Wales towards the close of the reign of Queen Elizabeth. A father and his son attainted of felony were sentenced to be hanged. at the same time in the same cart. This took place. The widows of both felons. demanded dower, and it became necessary to decide which of the two husbands survived. In the result we are not especially concerned, and, indeed, the result cannot now be discovered, for one of the reporters records that the father moved his feet after his son

1 Broughton v. Randall, Noy, 64.

was dead, while another reporter 2 informs us that the son appeared, on account of "his shaking his legs," to have survived his father.

In the year 1572 a woman named Bobie, living in France, was murdered, with her two young children, the elder under eight years. The motive of the assassins was robbery. Whether the mother or her offspring first received the fatal blows became a question very necessary to decide."

About the year 1767 the following

2 Broughton v. Randall. Cro. Eliz. 502. 3 Pothier, Traité, de Sexes, c. 3, 31.

state of facts aroused the earnest attention of the legal fraternity in England: An English general, Stanwix by name, sailed from Dublin for London, accompanied by his wife and his only child, an adult daughter of an earlier marriage. During the voyage the vessel, with its passengers and crew, was lost in a storm. General Stanwix was the owner of considerable estate, and died intestate. His nearest remaining relative was a nephew, his sister's child, Charles Connor by name. His daughter's nearest remaining relative. was an uncle, her mother's brother, named Holmes. There was, there could be, no testimony as to priority of death between the father and his daughter. Had there been witnesses of the shipwreck, survivors of the catastrophe, who could have testified to circumstances from which could be drawn an inference of survival for even the period of a lightning flash, the descent of the property would have been easily determinable. But the vessel sank solitary into the abysses of waters, its disasters a perpetual secret. Litigation between the two rival claimants ensued. Charles Fearne, the erudite author of Contingent Remainders and Executory Interests, prepared briefs, equally persuasive and equally ingenious, upon both sides of the controversy.* Lord Mansfield, before whom the cause was finally argued, recommended that it be compromised out of court, since he knew no legal principle upon which he could decide. it. This was done."

These three disasters, widely apart in time, greatly differing as to facts, readily lend themselves as an introduction and as an illustration of our theme.

4 Fearne's Posthumous Works, 38.

5 See Wright v. Sarmuda, 2 Phillimore, 261, note a; Rex v. Hay, 1 W. Blackstone, 640.

It will be observed that in the matter of evidential susceptibility the last incident differs widely from the other two. In these there is an opportunity for the presentation to a jury of testimony as to survivorship. Spectators could make oath as to which victim of the noose exhibited signs of vitality for the longer time. In the case, too, of Madame Bobie, those who discovered the dead bodies of the mother and of her children might well have seen in the disposition of the limbs, the character of the wounds, the general environment of the scene, some indications upon which a judgment of priorty of death might have been reached. But in cases like that of General Stanwix and his family there is absolutely nothing for the senses to seize; there can be only the play of fancy, the reign of conjecture and surmise.

The multiplicity of casualties attending modern business intercourse and modern extended journeys, the calamities of earthquake and conflagration, have rendered necessary some other disposition of cases like these, less expeditious and facile, but more satisfactory and logical, than Lord Mansfield's method of advising litigants out of court. There have arisen three different methods of disposing of cases where no light can be thrown upon the order of death, or where the glimmer is too feeble and fleeting for any substantial judgment. To bring these to your attention is now my purpose.

1. One of these methods is to decide dogmatically that all the related victims of the calamity perished at the same instant, so that no one of them could receive or transmit succession. Such a doctrine is embodied in the codes of Holland, Austria, and Prussia and in the ancient code of Denmark. In India the Mohammedan law of in

7

6

heritance is practically the same-that all the relations die at the same instant, so that the property of each passes to his living heirs without vesting in any of the commorientes. The common law of England, which wavered doubtfully before crystallizing into its present shape, shows instances of the tendency to this doctrine. Thus in 1784 Lord Thurlow decided that if two persons, being joint tenants, perish by one blow, the estate will remain in joint tenancy in their respective heirs a decision equivalent to saying that both died at the same time. So in a case decided at about the same period by Sir William Wynne it became important to know whether a father or his four children, the oldest not eight years of age, the longer survived the perils of a shipwreck. The judge deemed it-to quote his language "the most rational presumption that all died together and that none could transmit rights to another." A whimsical extension of the principle of contemporaneous destruction was applied as between human life and personal property in a case decided by Vice Chancellor Parker in 1851.8 Daniel Friend by his will specifically bequeathed certain chattels. Then he took these chattels and sailed for India, having first insured them. On the return voyage, he, the passengers and crew, and the chattels, were lost at

sea.

The insurance money was paid to the executors of Friend, and the legatee of the chattels claimed it. The court reasoned somewhat as follows: Had the testator been destroyed before the chattels, the legatee, in whom an

In the case of Bradshaw v. Toulmin, 2 Dickens, 633.

7 Wright v. Sarmuda, 2 Phillimore, 261, note a; also under name Wright v. Netherwood, 2 Salkeld, 593, note (Evans' edition).

8 Durrant v. Friend, 5 De Gex & Swale, 343.

interest in the chattels would have vested, would have been entitled to the insurance. Had the property been destroyed before the testator, the benefit of the policy would not have passed to the legatee, but would have constituted a part of the testator's estate. But both chattels and testator perished together. As, in order for the legatee's recovery, there must have been at least an instant of time in which ownership vested in him, and as there was no such instant of time, the avails of the insurance policy could not benefit the legatee, but were a part of the testator's residuary estate.

2. A second method of disposing of the problem of survivorship in a common disaster is by the invocation of presumptions. A presumption, as you know, is a rule of law that courts shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved. That a married woman committed a theft in her husband's presence raises a presumption that she acted under his coercion. So a child born in lawful wedlock is presumed to be the husband's

child.

Presumptions as to survivorship were common in the old Roman law, are found in the code of Justinian, in the Code Napoléon, in the judicial systems of the other Latin countries of

Europe, in the code of the Territory of Orleans at the time of its cession to the United States, and in the codes of Louisiana and California. Here are some instances of these presumptions, which it will be observed are not in favor of contemporaneous demise:

If a parent and his son perished in the same battle or shipwreck, the son above the age of puberty was presumed to have survived his father; under

P

P

that age, to to have predeceased him. This was upon the idea that in the former case the son was usually stronger, in the latter weaker, than his father.

So if persons perishing in the same disaster were all under fifteen, the presumption of survivorship was with the elder; if all were over sixty, with the younger. Similarly, the wife was presumed to have yielded first to the common peril.

The law of France, anterior to the First Empire, adopted other presumptions as necessity arose. The Parlement of Paris, deciding questions of heirship growing out of the massacre of St. Bartholomew's Day, acted on the presumption that older persons. were massacred before younger persons and children, on the theory that the assassins would first destroy those most able to offer resistance.

This last-mentioned presumption was applied in the case of Madame Bobie, to which your attention has already been called. The court found that the mother died before her infant children, upon the theory that the assassins, whose aim was robbery, would first slaughter the one most able to resist their plans. I do not regard this as a "tremulous," an illusory, or an intangible presumption. Without question the aim of the robbers would first be directed against the mother. The feeble infants could well await their leisure. Certainly such a presumption is no more "violent" than that enter tained by Sir William Wynne in the case of Wright v. Sarmuda, above quoted, who thought it "rational" to presume that a father and four little children yielded up their breath in a family concert.

Under the Napoleonic sway the French adopted precise and systematic rules governing doubtful cases of death.

A somewhat free rendering from the French of the important articles on the subject follows:

If several individuals respectively entitled to inheritance from one another should die by the same event, without any one being able to ascertain which died first, the presumption of survivorship is determined by the circumstances of the fact; but, these being wanting, by the condition of age and sex.

If those who thus died were under fifteen years of age, the eldest will be presumed to have survived; if all were above sixty, the youngest will be so presumed; if some were under fifteen and some above sixty, the former will be so presumed.

If those who thus died were between fifteen and sixty years of age, the presumption of survivorship is with the male as against the female, if the difference of age between them does not exceed a year. If those who thus died were of the same sex, the presumption of survivorship follows the order of nature, and the younger must be presumed to have outlived the elder."

That it may not be supposed that presumptions like these are alien in spirit to American jurisprudence, I quote the rules embodied in the Civil Code of California, one of the most progressive and enlightened of our

states:

When two persons perish in the same calamity, such as a wreck, a battle, or a conflagration, and it is not shown who died first, and there are no particular circumstances from which it. can be inferred, survivorship is presumed from the probabilities resulting from the strength, age and sex, according to the following rules:

9 The original French is accessible in Mason v. Mason, 1 Merivale, 308.

« PreviousContinue »