PRAYERS were over at the old meeting

house at Swanee, and Brudder Rastus, in behalf of "De respectable colored people," in a dignified tone requested the congregation to tarry awhile, for business of the utmost importance was to be transacted. One of their members had fallen from grace, and it was no case of justifiable larceny, either.

"Deahly belubbed bredren," began Brudder Rastus, "gib me your attenshun and I will read you de charge of un-Christian conduct preferred against Joe Hamilton by de Deacon Ebenezer Johnson. Ebenezer Johnson says that Joe Hamilton, widout any provocashun assaulted him seriously an' stole two bushels of potatoes from his, Deacon Johnson's potato patch.' To dis charge Brudder Joe Hamilton says he am not guilty, and for trial puts himself upon de assembly, of which assembly you are. If he am guilty, you will say so; if he am not guilty, you will say so, an' no more. "Gentlemen and ladies of dis here congregation, hearken to de evidence."

an' I didn't know what to do. Deahly belubbed bredren, we read in the Holy Scriptures that de ravens fed ole 'Lizeh, I think, yes, Elizah, the prophet in de desert, but de critters won't feed me. I sat on de fence an' waited for de pesky birds to come along, and, really, bredren, dem birds hab got above dat business. They came an' paid no attenshun to me at all. Now, I knowed the way to Brudder Johnson's tater patch, an' although the night was dark 'twas easy nuff to find. I had just finished, an' filled my basket when up I looked and saw Brudder Johnson's ole hoss pistol apointing straight at me. Self-preservation being de first law ob nature, I had to knock him down, an' I think you'll agree wid me that dis case am a very trifling one, and ought not to be brought before the church.'"

Brudder Rastus: "Ladies and gemmen and all contrite and repentant sinners, are you ready for de question? Is de delinquent Brudder Hamilton guilty or not guilty?" Congregation: "Guilty of justifiable lar

ceny."

Brudder Rastus: "Brudder Hamilton, listen to de sentence of de church as de deacons hab awarded it. De deacons sentence you to be suspended from church membership for de term of three months, to fast from eating chicken an' watermelon as a penance for the further term of six months, and you stand so suspended until you perform de above sentence and penance." "De chair awaits a motion."

Motion to adjourn made by Brudder John

son.

Carried.

S a result of the Iroquois Theatre disas

ter in Chicago the courts will likely be called upon to decide some or all of the interesting legal problems that arise when property or other rights depend on the order in which two or more persons died, there being no evidence sufficient to establish it. Did A survive B so that a devise from B to A took effect with the result that A's heirs and not B's are entitled to the property? Did the first beneficiary of a policy of insurance survive the insured so as to become entitled to the amount due on the policy, which would then pass to his next of kin; or did he pre-decrease the insured, in which event the second beneficiary would have the greater right? These are examples of the questions that arise. How does our law deal with them? Some things are settled, but much is yet in considerable doubt.

Despite occasional statements to the contrary, it is established that there is no presumption that any particular person or per It is equally sons survived the others." clear that if there is sufficient evidence to establish the actual order of survivorship as a fact, its use is legitimate and desirable." In such a case the difficulties are avoided. It may also be considered certain today that there is no presumption that all died at once. Nor is there any prestumption even that there was a survivor. There is thus no

1Colvin v. Procurator-General, 1 Hagg. Ec. 92 (1827); Moehring v. Mitchell, 1 Barb. Ch. 264 (1846).

2 Most of the cases are collected in a note in 51 Law yers' Reports Annotated, 863. The following may be added: Robinson . Gallier, Fed. Cas. 11,951 (Cir. Ct. for La. 1875): Faul 7. Hulick, 18 D. C. App. 9 (1901) overruled by the next case; Y. W. C. Home 7. French, 187 U. S. 401, 23 Sup. Ct. 184 (1903): Middeke v. Balder, 198 III. 590, 594, 64 N. E. 1002 (1902); U. S. C.

Co. 7. Kacer, 169 Mo. 301, 310, 69 S. W. 370 (1902); Supreme Council 7. Kacer, 96 Mo. Ap. 93, 69 S. W. 671 (1902); Southwell . Gray, 72 N. Y. Supp. 342 (1901); Hildebrandt v. Ames, 27 Tex. Civ. Ap. 377, 380, 66 S. W. 131 (1901); Screwmen's Ass'n. 7. Whitridge, 95 Tex. 539, 68 S. W. 501 (1902); Males 2. Woodmen, 70 In California and S. W. 108 (Tex. Civ. Ap. 1902). Louisiana, however, presumptions similar to those of the civil law exist. Hollister. Cordero, 76 Calif. 649, 18 Pac. 855 (1888); Succession of Laugles, 105 La. An. 39, 29 So. 739 (1901). In both States the presumptions apply only in the absence of evidence sufficient to solve the question.

3 Broughton . Randall, Cro. Eliz. 5c2 (1596): Sillick v. Booth, 1 Y. & C. (Ch.) 117, 124, 126 (1842); Underwood 7. Wing, 19 Beav. 459 (1854) affirmed 4 De. G. M. & G. 633 (1855); Robinson z. Gallier, Fed. Cas. 11,951 (Cir. Ct. for La. 1875): Smith v. Croom, 7, Fla. 81,144 ff. (1857); Coye 2. Leach, 8 Met. 371, 374 (Mass. 1844); Broome 7. Duncan, 29 So. 394 (Miss. 1901); Pell 7. Ball, Chev. Eq. 99 (S. C. 1840); Ehle's Will, 73 Wis. 445, 41 N. W. 627 (1889).

4 Underwood . Wing, 4 De. G. M. & G. 633, 660 (1855); Wing 2. Augrave, 8 H. L. Cas. 183, 199 (1860); Middeke 7. Balder, 198 III. 590, 594, 64 N. E. 1002 (1902); Russell 7. Hallet, 23 Kan. 276, 278 (1880); Johnson 7. Merithew, 80 Me. 111, 116, 13 At. 132 (1888); Cowman 7. Rogers, 73 Md. 403, 21 At. 64 (1891); Newell 7. Nichols, 75 N. Y. 78 (1878). The early English cases contra are overruled by Wing 2. Augrave supra. They are the following: Wiight . Netherwood, 2 Salk. 593, n. (a), 2 Phillim 266, n. (c) (1793); Taylor v. Diplock, 2 Phillim. 261, 280 (1815); Goods of Selwyn, 3 Ilagg. Ec. 748 (1831); Satterthwaite 7. Powell, 1 Curt. Ec. 705 (1838). Perhaps all these cases could have been, and at least two of them were, put also on other grounds. The dictum in Kansas Co. 2. Miller, 2 Col. (Ter.) 442, 464 (1874) contra is clearly erroneous.

5 Newell 7. Nichols, 75 N. Y. 78, 88 (1878).

Cowman v. Rogers, 73 Md. 403, 406, 21 At. 64 (1891).

7 Newell 7. Nichols, 75 N. Y. 78, 89 (1878).

second suggestion, though exceedingly common, the writer believes untenable. It is merely a rule of thumb, which, while accomplishing the result the courts desire in the majority of instances, fails completely in certain cases. In Hartshorne v. Wilkins' the testator gave certain property to trustees on trust to dispose of the income in certain ways during the life of his daughter Louisa, and after her decease to transfer the fund to such of her children "as should then be living." and "should his said daughter Louisa die without leaving any lawful issue," then to transfer the fund to certain nieces. The daughter Louisa and all her children perished in the same disaster and there was no evidence sufficient to establish survivorship. It was held inter alia that the nieces could not take "because their title depended on the daughter dying without leaving any lawful issue, and there is no proof whether she did or did not so die, that is, whether her children did or did not survive her. Now if the property should have been disposed of as if all died at once, the decision was erroneous. In that event the daughter would have died "without leaving any lawful issue," and the condition on which, according to the court, the title of the nieces depended would have been performed. In United States Casualty Company v. Kacer3 the policy was payable to "Miss Florence Yocum, daughter, if surviving, if not, to the legal representatives of the insured." Miss Yocum and her father, the insured, were lost in the same catastrophe. The court held that her representatives were entitled to the proceeds of the policy. The argument of the court was that "a policy payable to a named beneficiary, but with such words of divestiture, creates a vested interest in the policy, and the money to arise out of it, in the primary

12 Old. 276 (Nova Scotia, 1866).

2 Ib. 288.

3169 Mo. 301, 69 S. W. 370 (1902).

▲ Ib. 307.

beneficiary, coupled with a condition subsequent, that the vested interest shall be divested out of the primary beneficiary and his representatives and vested in the alternative beneficiary upon the happening of the subsequent contingency of the primary beneficiary dying before the assured," The last clause stating the contingency was evidently a slip. The contingency provided for in the policy is not pre-decease but nonsurvival. The representatives of the insured then had to show non-survival of the first beneficiary. But if it is to be taken that the insured and the beneficiary died at the same moment, non-survival is the basis on which the case should have been decided, The result would be that the interest of the first beneficiary terminated and the representatives of the insured were entitled as the alternative beneficiary. Not only are these cases inconsistent with the supposition of synchronous death, but all the cases in which that notion was applied are equally explicable on other grounds which harmonize all the authorities. Again, as is occasionally noticed by courts adopting this suggestion of simultaneous death, to hold that property is disposed of as if all died at once is in sub-. stance to adopt a presumption to that effect.9 Is it not absurd to say that there is no such presumption and yet to settle all questions 5 Ib. 316-17.

See the words of the policy quoted above.

7 The burden of proof was cast on the alternative beneficiary (p. 317) in accordance with the general rule that the happening of a condition subsequent must be proved by the one who asserts that the vested interest has terminated. For a more complete explanation of this see infra p. 22.

8 One may possibly dissent from one or both of these cases on the ground that the court laid too much emphasis on technicalities in construing the will in the one case and the contract in the other, and overlooked the real intention of the parties. See infra pp. 13, 22. But that does not weaken their authority on the point now under consideration. Suppose the conditions which the courts found had been so expressed that no possible construction could avoid recognizing them, were the decisions wrong because the court did not take it that death was simultaneous in such cases?

9 Newell 2. Nichols, 75 N. Y. 78, 90: Russell 7. Hallett, 23 Kan. 276, 278.

that arise as if there were? On the whole, it seems that a supposition of death at the same time is not the true solution.

We are thrown back then upon the statement that survivorship must be proved by the party asserting it. This means, of course, that he who has the burden of proof of survivorship must, in the absence of sufficient evidence, fail. This seems unobjectionable, but the difficulty is to apply it. Who has the burden of proof? The problems that are created by the inability to fix the order of death are so various that it would not have been surprising had it proved impossible to find any one principle that would cover all the cases. But keeping in mind. that the exact legal effect of the facts to which it is to be applied must be understood, and that it is subject to possible modification by other established rules concerning the burden of proof, there is a single principle which explains at least all the cases which have thus far arisen. In the largest class of cases the parties are claiming title to property, the ownership of which depends upon who, of those who perished, survived the longest. These constitute about three-fourths of all. Another class of cases consists of contests over the proceeds of insurance policies, the insured and the beneficiaries, or some of them, having succumbed in the same calamity. The other instances are scattering. The general principle can best be stated in connection with the first class of cases mentioned above. Its application to the others will be apparent.

Beginning then with what we may call the descent cases, our largest class, what is the rule for determining the burden of proof which governs them? Here each party wishes to make it appear that the person from whom he would have derived title survived. The solution that the authorities indicate may be stated thus: Any claimant has the burden of establishing survivorship so far as it is essential to his own chain of title, but

he need not establish it for the purpose of disproving his opponent's chain of title, even though the latter, if established, would be su perior to his own. An examination of some of the cases will make the meaning and application of this statement clear.

There are a number of cases of intestacy where the intestate and his nearest of kin perished together, and the contest is between the representatives of these nearest of kin and more remote kindred who are entitled to the property if the nearest of kin did not succeed to it. In re Green's Settlement1 is a simple case of this kind. The property in question was included in a marriage settlement, the trusts of which were exhausted. The wife was settlor of this property, and so there was a resulting trust for her estate. She, with her husband and only child, were killed in the Indian mutiny. The husband died first. Survivorship as between mother and child was undetermined. If the mother. survived, her next of kin were entitled, and they were the petitioners; if the child sur vived, its next of kin were entitled, and one of the respondents was its administrator. The next of kin of the mother succeeded, The decision accords fully with our rule. The next of kin of the mother take directly. from her. Their chain of title is complete in showing her death and their own survivorship. They need not disprove the survivorship of the child in order to overthrow their opponent's chain of title. The representatives of the child, on the other hand, do not make out their chain of title without proving its survivorship. Upon them then rests. the burden of proof of that fact. As the court said, ". . . a person claiming under such a title must go further and must shew not only that the person through whom he claims would have been entitled if he survived, but that he actually was entitled, or, in

L. R. 1 Eq. 288 (1865).

other words, that he did survive." All the authorities accord with this conclusion.1

The next group of cases is composed of contests between parties representing devisees or legatees under a will on the one side and heirs or next of kin on the other. The testator and a devisee having died in the same disaster, the question whether the heirs of the testator or those of the devisee now have title plainly turns on which of the decedents survived. The burden of proof is determined by exactly the same principle as that governing the last case. The heirs of the testator take their title directly from him. He is the person who had title at the time of the disaster. Their chain of title, therefore, is made out by showing his death and their own survivorship. The heirs of the devisee, however, to make out their chain of title, require the survivorship of the devisee. On them, therefore, rests the burden. of proof.2

Wing. Husband and wife died in the same shipwreck. In default of appointment, the father's will gave the property to certain persons represented by Augrave. It was held that these persons were entitled to the property as against Wing, because he could not show performance of the condition on which his title depended, namely, the death of the husband in the wife's lifetime. Disregarding the condition for a moment, how would the case be decided? Wing was an appointee under the power, and the prior appointments had failed. The other party was entitled in default of appointment. The position is the same as if Wing were the last substituted devisee under a will and his opponents the heirs of the testator. As between such parties, the devisee would of course, succeed. Both take directly from the testator. Neither has to prove survivorship of anyone except himself. Neither need show non-survival of prior devisees as that is no part of either's chain of title. Each

ing case in another group which may now be considered. A wife, under a power given her by her father's will, appointed the property to her husband, "and in case my said husband shall die in my lifetime" to William

1 Satterthwaite . Powell, 1 Curt. Ec. 705 (1838): Goods of Wheeler, 31 L. J. (P. M. & A.) 40 (1861): Smith . Croom, 7 Fla. 81, 141 (1857) semble; In re Hall, 9 Cent. Law. Jour. 381 (Ill. Prob. 1879); Russell 7'. Hallett, 23 Kan. 276 (1880); Johnson v. Merithew, 80 Me. III, 116, 13 At. 132 (1888); Coye 7. Leach, 8 Met. 371, 375 (Mass. 1844); Stinde 7. Goodrich, 3 Red. Sur. 87, 89 (N. Y. 1877); Ehle's Will, 73 Wis. 445, 41 N. W. 627 (1889). So far as Colvin 7. Procurator-General, 1 Hagg. Ec. 92 (1827) is authority for anything it is also in accord.

2 Taylor v. Diplock, 2 Phillim. 261, 280 (1815): Goods of Murray, I Curt. Ec. 596 (1837); Goods of Carmichael, 32 L. J. (P. M. & A.) 70 (1863); In re Lewes' Trusts, L. R. 6 Ch. 356 (1871); Goods of Alston, [1892] P. 142; Robinson v. Gallier, Fed. Cas. 11,951 (Cir. Ct. for La. 1875); Matter of Ridgeway, 4 Red. Sur. 226 (N. Y. 1880); In re Willbor, 20 R. Í. 126, 37 At. 634 (1897); Pell v. Ball, Chev. Eq. 99, 108 (S. C. 1840) semble. Faul 2. Hulick, 18 D. C. App. 9, 28 (1901) is contra but was reversed on appeal, Y. W. C. Home 7. French, 187 U. S. 401, 23 Sup. Ct. 184 (1902).

38 H. L. Cas. 183 (1860).

der a valid devise, of course has precedence over the heirs at law. So in the absence of the express condition Wing would have had the better case. Subsequent devisees, all

In re

4 An interesting feature of this case was that by the husband's will Wing was given the husband's estate if the wife died first. So whether husband or wife survived, Wing was entitled to all the property of both, subject, in case the husband survived, to the payment of his debts. The court thought that Wing could not join these alternate claims. A criticism of this position is found in 12 Harvard Law Review 45. One readily agrees with the learned writer's view that several persons who among them have title under all possible contingencies, though no one can prove that the contingency on which he would have title occurred, should be permitted to pool their interests and so recover. Rhodes, L. R. 36 Ch. Div. 586 (1887) seems to countenance such a proceeding. Newell . Nicholls, 75 N. Y. 78, semble contra, simply follows Wing v. Augrave. But the writer of the article fails to notice that in Wing 7. Augrave there were three possible states of fact: survivorship of the wife, survivorship of the husband, simultaneous death. In the last event Wing would have no rights at all. Neither the condition in the wife's will nor that in the husband's would be performed. The joining of his two claims would not therefore, have helped Wing. The same consideration made joinder useless in Newell 7. Nicholls, supra.