
    William King et al. versus Daniel Fowler.
    
      Sept. 24th
    
    
      Sept. 20th.
    
    Where a demandant claimed a title under one of six children of the former owner of the land, evidence that inquiries had been made in regard to the other five children and that nothing had been heard of them for seventy years, was held sufficient to justify a jury in finding that they had died without issue.
    Writ of right to recover a lot of land on Hampton Plain, in Westfield, containing eighty acres. Trial before Wilde J.
    The demandants proved that the lot in controversy was originally laid out to Stephen Kellogg in 1734. From the records of the town it appeared, that there was a Stephen Kellogg, who was married in 1719, and had six children, one of whom was named Stephen. The demandants produced deeds from four children and one grandchild of the last-mentioned Stephen, to Bohan King, the father of the demandants, dated in August 1818, and they proved that inquiries had been made in regard to the other children of Stephen Kellogg the elder, and that nothing had been heard of them for more than seventy years.
    The jury were instructed, that as the demandants produced deeds from all the heirs of Stephen Kellogg the elder who were known to be living, they were entitled to recover. The tenant excepted to this instruction, and contended that the demandants were bound to show.that the heirs from whom they had deeds, were all the heirs of Stephen Kellogg the elder.
    The jury having found a verdict for the demandants, the tenant moved for a new trial, on account of misdirection of the judge.
    
      Boise and Blair, for the tenant,
    cited 2 Bac. Abr. 661, Evidence, H.
    
    
      Mills and Hamilton, contra,
    
    cited Doe v. Deakin, 4 Barn. & Ald. 433 ; Crouch v. Eveleth, 15 Mass. R. 305.
   Putnam J.

delivered the opinion of the Court. We admit the rule of law to be as stated by the counsel for the tenant, that persons once in being shall be intended to be still living, f the contrary be not proved. Wilson v. Hodges, 2 East, 312. But we think the demandants have proved the contrary, in relation to the decease of five of the children and heirs of Stephen Kellogg the elder, to whom the demanded premises were laid out in 1734. So that the right of Stephen Kellogg the elder came to Stephen Kellogg the younger, from whose heirs the father of the demandant obtained deeds in 1818.

The evidence was, that Stephen Kellogg the elder was married in 1719, and had six children; and that inquiry has been had where information could be most probably obtained, and no account whatever of five of them could be procured. We think the legal result was such as the jury have found, viz. that they died without lawful issue ; especially as there was no evidence introduced to rebut that evidence on the part of the tenant.

In Cunliff v. Sefton, 2 East, 183, the plaintiffs were bound to prove the execution of a bond. One of the subscribing witnesses had become interested after his signature, and so could not be a witness. But the court permitted the party to prove his handwriting, notwithstanding there was the name of another subscribing witness to the bond. For in regard to the other, the plaintiff proved that inquiry had been made for him at the places where the obligor as well as the obligee lived, and no account of him could be obtained. The case was treated just as if he were not in existence.

And so in the case at bar, the clear result of the whole evidence is, that the right of Stephen Kellogg the elder came to Stephen Kellogg the younger, inasmuch as there has not been any thing heard or known of his five brothers for more than seventy years.

Judgment for the demandants.  