
    Margaret Demarest and Mary A. E. Stewart, Plaintiffs, v. Robert Friedman, Defendant.
    
      Marketable title — what is-such convincing proof of death that the acceptance of a title based thereon will be decreed..
    
    Albert A. Demarest, who died October 21, lá36, left the remainder of his real and personal property to his four children, Mary Ann Elizabeth, Margaret, Harriet and Albert in equal shares. Albert Demarest, the son, was born October 81, 1831, was married in 1849 and procured a divorce from his wife on November 13,1852, without having had issue. From 1851 to 1860 he lived with his sister Mary Ann Elizabeth, who saw him daily and knew of his associations and acquaintances and his daily manner of living, and up to the last-mentioned year he remained unmarried and without issue. In 1860, by the advice of his physician he embarked on the ship Charlescmd Bdwa/rd, from New Bedford, Mass., bound on a whaling voyage of uncertain duration, communicating with his sisters from time to time. In January, 1865, his sister Mary Ann Elizabeth received a letter addressed to her deceased father, bearing the official seal of the United States consulate at Callao, Peru, • signed by the person who was then Vice-Consul of the United States at that port. The letter stated that one Albert Demarest had died of consumption at Callao, Peru, and thoroughly identified him as the person who had sailed on the whaling ship Charles and Bdward. None of the relatives of Albert Demarest ever heard 6f him after that time.
    Harriet Demarest died September 6, 1878, unmarried and intestate. The petition for letters of administration upon her estate stated that she left no issue and no brother or sister or descendant of any deceased brother or sister except. Mary Ann Elizabeth and Margaret.
    ■ Held, that the proof was convincing that Albert Demarest died intestate, unmarried and without issue in December, 1864;
    That the possibility that he might have married and had issue while he was on the whaling voyage was so remote and unreasonable that it should not be allowed as a valid objection to the title;
    That Mary Ann Elizabeth and Margaret could convey a marketable title to land devised by their father’s will, the acceptance of which, by a contract vendee, would be compelled by the court. . ...
    . Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Ernest Sail, for the plaintiffs.
    
      S. Seymour Eisma/n, for the defendant.
   Patterson, J.:

This case comes before us upon a submission of a controversy upon an agreed statement of facts pursuant to the provisions of section 1279 of the Code of Civil Procedure. The defendant’s assignors entered into a contract in and by which they agreed to purchase from the plaintiffs certain premises known as Ho. 107 Thompson street, in the borough of Manhattan in the city, of -Hew York. Such assignors paid at the time of the signing of the contract the sum of $500 on account of the purchase price. At the time named in the contract the plaintiffs tendered to the defendant, as assignee of the purchasers, a deed purporting to convey to him in fee simple the premises free and clear of all incumbrances. The defendant rejected the title and demanded back the amount of the deposit, together with a certain sum as expenses incurred by him in searching the title to the said premises. The ground of the rejection apparently is that there was an outstanding interest or estate in a person which would not pass by the deed tendered by the plaintiffs, which was executed only by themselves. The- submission shows that the premises in question belonged in 1824 to one Albert A. Demarest, who died on the 21st of October, 1836, leaving him surviving his widow and four children, Mary Ann Elizabeth, Margaret, Harriet and Albert. By his last will and testament he gave to his widow for life, or during widowhood, a one-third interest in all his real and personal property in-lieu of dower, and he gave all the remainder to his three daughters and his son Albert, in equal shares, to be divided when the youngest child arrived at age, if at that time his widow should be deceased or remarried. The widow died in August, 1864, never having remarried. The daughter Harriet died September 6, 1878, unmarried and intestate. It appears by a petition for letters of administration upon her estate that she left no child or children;- or descendant of any deceased child or children, and no brother of sister or descendant of any deceased brother or sister, except Mary Ann Elizabeth and Margaret, the plaintiffs herein. The objection to the title is substantially that there is an outstanding interest in Albert Demarest not accounted for and which could not be conveyed. He was born on the 31st of October, 1830; was married in 1849, but procured a decree of divorce from bis wife on. November 13, 1852, since-which -time the wife has never .been heard from. . There was no issue of that .marriage,.and. neither,the plaintiffs nor any of .the family have ever heard of- any'issue of such marriagé. From; 1851 to 18,60 Albert. Demarest. lived with his-sister Mary-Ann Elizabeth, who saw him daily, and knew of his-associations and acquaintances .and his daily manner of life, and up to. the last-mentioned year he. remained unmarried and- without issue. In I860, he embarked-on the-ship, the Charles and.Edioa/rd, from New Bedford, Mass., bound on a whaling voyage of uncertain duration. From time to time his sisters received letters from him. In. January, 1865, his sister, the plaintiff Mary A. E. Stewart, received Information of .an official character, from W. Seabury Coffin, vice-consul of the United- States a-t Callao, Peru, of the death of" Albert- Demarest. That the person whose death' was ■ so-announced was Albert-Demarest, the brother of these plaintiffs,, wé have no doubt.' - The letter of the vice-consul was under the official seal of the consulate. It was addressed-to Albert A, Demarest,-who was-the father of Albert Demarest, but who died iu T836. ,That letter came into the possession of one-of the plaintiffs' and- was opened by her. It contains a statement of the. circumstances attending the death of Albert, Demarest, and thoroughly identifies him-as the person who sailed on the: whaling ship Charles and Edward. Tt communicates information to Albert A.-Demarest of the death of his son, who was discharged at Arica from the-whaling ship. Chcurles and Edward.

Tn the agreed statement of facts it' is mentioned that Albert Demarest went upon this whaling voyage in poor health under the. direction of his physician. ■ The letter of the vice-consul states that. A. A. Demarest’s son was discharged from his. ship at Arica, Peru, and was on’ his way to the States via Panama sick with consumption'.. -On-the arrival of the steamer at-Callao the vice-consul went aboard and found Demarest in- a very low state. An effort was made to-bring the sick man ashore; he was dressed" and. brought on deck. When about to. step, upon the ladder to go into a boat he fell back and died without a struggle. His effects consisted only of clothing-of no value. - His .pocket book contained án order on the owners for his share of the voyage. There were-also some photographs and. letters and a ring, which were sent by private hand. His body was buried with Christian rites and his grave was numbered at the British consulate. The papers that were inclosed in the letter were the discharge of Albert Demarest from the ship Charles and Edward, signed by the United States consul at Arica, and a statement of the account of Albert Demarest with the ship and its owners. Nothing whatever has been heard of Albert Demarest by any of his relatives since 1864. The Department of State in the United States has certified that in 1864, at the date of the vice-consul’s letter above referred to, W. Seabury Coffin, who signed that letter, was vice-consul of the United States at Callao and in charge of the office there.

On these facts we have no doubt whatever that Albert Demarest, the son of Albert A. Demarest, and the brother of these plaintiffs, died in December, 1864. The proof upon that subject is convincing and authorizes us to conclude that he died intestate, unmarried and without issue.

Each case of this character must stand upon its own facts. We are not indulging here in a presumption of death, but upon what we consider to be ample proof of the fact of death. That event occurred over thirty-seven years ago. No one has ever come forward to assert a claim to the interest which he derived in the real estate under his father’s will. The mere possibility that while he was on this whaling voyage in the Pacific being attached to the ship from 1860 to November, 1864, when he was discharged at Arica in South America, he might have married at some port and might have had issue, is so remote and unreasonable a conjecture that it should not be allowed as an objection to title to real estate. If the existence of an alleged fact is a possibility merely, or a supposed outstanding right depends upon a very improbable and remote contingency, the court has the discretion to compel a purchaser to complete his purchase. (Ferry v. Sampson, 112 N. Y. 418.)

. This case is free from reasonable doubt, and we are of the opinion that the discretion, if it be a matter of discretion Should be exercised to compel the purchaser to take the title.

Judgment is directed on the submission for the plaintiff.

O’Brien, McLaughlin, Hatch and Laughlin, JJ., concurred.

Judgment ordered; for plaintiff, without costs.  