
    Miller and others against Beates and another executors of George Schlosser, deceased.
    
      Monday, December 15.
    Where a person has been absent many years without being heard of, and. no circumstance appears to account for it, a jury may and ought to presume his - death.
    Therefore where‘14 years and 9 months had elapsed, between the time of a person’s being last heard of who had lived in Philadelphia, and the commencement of the action, and when last heard of, he was at a place between which and Philadelphia, there was a free communication, and it was then his intent to return to Philadelphia, Held, that the jury might and ought to presume his death without issue, and that a legatee over of personal property, on such event, might recover without giving security.
    New Trial.
    THIS action was brought to July Term, 181,?,. and was tried at the Nisi Prizes, on the 15th November last, before Tilghman C. J.
    The plaintiffs were legatees and residuary devisees under the will of George Schlosser, deceased, and in order to recover in this action it was necessary to prove, that John G. Schlosser, was dead without issue. It was proved on the part of the plaintiff, that John G. Schlosser went beyond sea, unmarried, many years ago ; and the last that was . heard of him was by a letter from himself to his father, dated at Bourdeaux, November 24th, 1802, in which he mentioned, that he should endeavour to get a passage to the United States, and hoped to be in Philadelphia the next summer. Pains had been taken to ascertain whether he died in France; but no evidence of his death could be obtained. The jury, by consent of parties, found for the plaintiff; and it was agreed, that there should be, a new trial, unless the Court should be of opinion, that the evidence afforded ground for a legal presumption of the death of John G. Schlosser.
    
    
      Rawle, for the plaintiffs,
    contended, that when a person has been absent seven years without having been heard of, the legal presumption is, that he .is dead. Thus, if a woman plead coverture, it is not sufficient for, her to prove that she-was married to a man who went abroad twelve years before the commencement of the suit; she must prove that he has been heard of within seven years before commencing 'the suit; otherwise, the jury might presume his death at the time of her promise. Phill. Ev. 152. So in the statute 1 Jac. 1. c. 11, against bigamy, there is an exception in favour of persons whose husband or wife has been continually absent for seven years. The statute 19 Car. 2. c. 6, (which is reported by the Judges of the Supreme Court to extend to Pennsyl
      
      vania,') provides, that if persons for whose lives estates are granted, absent themselves seven years, and there be no proof' of their living, they shall, in any action, by lessors or reversioners to recover the estate, be counted as dead. This statute has been considered to include within its equity a remainder man. Holman v. Exton. Here the period during which John G. Schlosser has been absent, and not heard of, notwithstanding the pains taken to trace him, is more than double the period fixed by the common and statute law, as a presumption of death.
    Binney, for the defendant.
    This suit is quite amicable ; and it is the wish of the defendants to pay the legacy, provided it can be done with safety. There is no rule for legal presumption, short of the usual life of man, in such a case as this. Here must be presumed not only a death, but a dying without issue ; and the question is, whether the law will presume this after fifteen years absence, without being heard of. There is no presumption on the subject at common law; if there had been, there was no occasion for statutory provisions. If there be, what is the time it fixes ? The probability of death within any given time is more or less according to circumstances. Life is to be intended, until the contrary is proved. Throgmorton v. Walton.
      
       The case of bigamy is not like the present. There no injustice would be done to any one. So in the case of real estates, if the person supposed to be dead should appear alive afterwards, the land remains to be enjoyed, and he might recover the mesne profits. But the mischief is great, where personal property is paid over. The Court, therefore, should not permit a recovery without security, to guard against insolvency, in case of life. No case on the subject of personal property is to be found in the English books. By the civil law, proof of death is required to be certain when it is the foundation of an action, as where one claims as heir of the deceased. By the code Napoleon, security is required to be given; which is not discharged till 100 years from the birth of the absentee.
    
      
      
        Garth, 246.
    
    
      
       2 toll’s Mep, 461.
    
   Tizghman C. J.

The common law has fixed no period, after the expiration of which, death should be presumed» But there are two statutes in England, creating a.presumption in certain cases. By the statute punishing bigamy as a felony, which does not extend to Pennsylvania, because it was made in the first year of James I. (before the grant to William Penn,) there is an exception in favour of persons, whose husbands, or wives, have been continually remaining in parts beyond sea, for seven years before the second marriage, or who have been absent within the king’s dominions for seven years, without being known to be living within that time. And by the statute of 19 Car. 2, c. 6, (which extends to Pennsylvania,) it is enacted, that if any person or persons, for whose lives, estates are granted, absent themselves for seven years together, and no evident proof be made of their being living, in any action commenced by the lessors or reversioners, for recovery of the premises, they shall be counted as dead. The Courts in England have adopted and extended the principle of these statutes to cases not comprehended in them ; to the case, for instance, of a person seised of lands in fee simple, who has been absent beyond sea, without being heard of, for seven years. But, it is contended by the counsel for the defendants, that there is a wide difference between cases affecting real and friona/property. In case of l’eal property, no great harm is done, if the presumption should prove false, because the property remains, and may be recovered by the absentee who was falsely presumed to be dead. But where money is paid on a false presumption, it may be lost; because, although an action would lie for the recovery of it, against those to whom it was paid, yet they may be insolvent. It is true, that there is a difference between land and money, and that the injury may be greater to the absentee, when his money is paid away, than when his land is taken possession of. And yet, we do not see, that the English Courts have acted on that distinction ; for in Phill. Evid. 152, it is said, that in an action of assumpsit against a woman who pleads coverture, it is not sufficient for her to prove that she was married to a man who went beyond sea, twelve years be,fore the commencement of the action ; unless she prove also, that he was alive within seven years, because without this additional proof, the jury might presume that he zvas dead, at the time of the promise. There are certain rules,'by which jurors ought to govern them.selves, although it is their right to decide facts. Whether a man was alive, or not, at a certain time, is a fact, which' the jury must decide, and yet, if under certain circumstances, the probability of death is great, it may be said, that the jury ought to presume the death without positive proof. There is no positive law, fixing a presumption of the payment of a bond ; and yet, if the interest has remained unpaid for twenty years, and there is no circumstance accounting for this long cessation of payment, there arises so strong a presumption of the satisfaction of the debt, that the jury not only may, but ought to presume it, and unless they do, the Court would order a new trial. Still payment is, in its nature, a fact to be decided by the jury. It is so with all other presumptions. Now as to the proof of death ; when a man has been proved to be living, the first general presumption is, that he continues to live, unless the contrary be proved ; the proof of death is thrown, therefore, on the party who asserts it. But there may be circumstances, which destroy the first general presumption of life, and induce a contrary presumption, viz. of death; and in such case, the burthen of proving the life, will be thrown upon the party who asserts it. For instance, although a. person who has gone from Philadelphia to France, may be presumed to be living, although- he be not heard of for several years, because such things commonly happen ; yet when many years have elapsed without hearing from him, and no circumstance is shewn, by which this may be reasonably accounted for, it is so contrary to general experience, that he should be living, that the jury may, and ought to presume his death. For, in such cases, what is to be done ? The jury must find the fact one way or the other. They are not to give a verdict by caprice, but upon principle. Therefore, when a man’s being alive is inconsistent with the other fact proved in the cause, according to general experience, it ought to be presumed, that he is not alive. I find it laid down in 2 Peake's Law of Evid. 356; that where one has not been heard of for many years, this is prima facie evidence, to presume his death without issue, until the contrary be proved. This appears to .me to be quite reasonable. Many years is an indefinite expression. I am not for fixing, at present, any precise period, after which a presumption of death arises. But I think myself safe in saying, that in the present instance, considering, that fourteen years and nine months had elapsed, between John G. Schlosseds being last heard of, and the commencement of this actjon. that when last heard of, he was at a place between which and the city of Philadelphia there was a free communication, and it was then his intent to return soon to Philadelphia > his being now'in life, would be contrary to the usual course of things; that the jury might, and ought to presume his death, and if the case were to come to another trial, the Court would so direct them. As to the injury which might arise to John G. Schlosser, by this presumption, in case he should be alive, I think it ought not to be regarded. He would have his action against those to whom the money will be paid; and although he might lose by their insolvency, yet that would not be a greater evil than would arise from the establishment of a principle, that the life of a man ought to be presumed, under circumstances which usually attend death, merely because positive proof of death could not be obtained. I am bound to mention, in justice to the defendants, in this cause, that they have no wish to reap any benefit from the detention of the money in question. Their object is safety; they are willing to pay to the persons who are authorised by law to receive ; and, considering the circumstances of the case, I think they were prudent in withholding the money, till the plaintiffs established their right by legal adjudication.

Gibson J. was absent.

Duncan J.

The question her.e is, had the event taken place, on what the right of the present plaintiffs to demand this legacy had accrued ? This case does not fall within any statutory provision. The evidence to establish the fact of the death of John G. Schlosser, without issue, must be by common law proof. John G. Schlosser, being once in existence, it is incumbent on the party claiming on the allegation of his death, to prove that fact by satisfactory evidence. This the law does not require to be by positive proof of the fact; but, like all other facts, may be made out by the best proof the nature of the fact is capable of; circumstantial evidence. Now here, the proof does not depend on evidence of. absence beyond sea for seven years, but for nearly fifteen years. The last account we have of this man, is from himself. He was then free, and not under any duress. He might go where he pleased; and he declared his. intention to return to his native country, and to his father, as soon as he could procure a passage. Inquiries had been made at Bordeaux, the place where he was proven last to have been, and no account obtained, of what had become of him. This causes a presumption of death, sufficient to repel the general presumption of life. It is prima facie evidence of his death without issue, and throws off from the person alleging death, the positive proof of that fact, and casts the burden of the proof of life on the party alleging it.

In Rowe v. Hasland, (1 W. Bl. 404,) the law on this subject is thus laid down. In establishing a title upon a pedigree, where it may be necessary to lay a branch of the family out of the case, it is sufficient to shew, that the person has not been heard of for many years, to put the opposite party upon proof that he still exists. Many persons go to the East and West Lidies, and are never heard of again. And in 2 Peake’s Evid. 356, the reputation of the family, that the relative went abroad, and died there, or inscriptions on tomb-stones, See. which are a species of reputation, are sufficient; and if he has not been heard of for many years, this in every case is prima facie evidence, sufficient to presume his death without issue, until the contrary is proved. It is true, these cases may refer to ejectments, and, as is observed by Lord Mansfield, in the case of Rowe v. Hasland, what is done on such trials is no injury to the man, or to his issue, if he should afterwards appear and claim the estate. But I do not know that this consideration can change the rules of evidence. The Courts do not require less evidence in ejectments, than in other cases, on the reason that the trial does not conclude a party in interest. In this case, if there was a devise of real estate together with personal, and a limitation over, on the death of the first taker, that, on the trial for the land, the evidence of death should be judged sufficient, and yet, on a suit for the legacy, in the same Court, it should be deemed insufficient, would be a strange inconsistency. But the same rule of evidence must hold, let the trial be real, personal, or mixed. For we find in personal actions, that the same presumption exists. As on the plea of coverture, in a personal action, the death of the husband may be presumed. In another case, merely personal, as in action on a recognisance against special bail, who pleads the death of the principal, before capias ad satisfaciendum returned, and issue taken, those circumstances which tended to prove the death of the principal, might be given in evidence, from which the presumption of death would be raised. If a bill had been filed in a Court of Chancery for this legacy, it would appear to me, that a Chancellor would decree payments, founding his decree on the presumption of the death of John G. Schlosser.

I am, therefore, of opinion, that sufficient evidence was given to rebut the presumption of John G. Schlosser being in existence ; and that the prima facie evidence of his death, without issue, cast on the defendants the onus of proving him alive, or that he left issue, and that it would have been the duty of the Judge, so to have instructed the jury. It would, therefore, be a useless delay and expense, to submit it to another jury, when, in point of law, the result ought to be the same, a verdict for the plaintiffs.

New trial refused.  