
    Matter of the Probate of the Last Will and Testament of Frederick W. Miller, Deceased.
    (Surrogate’s Court, Kings County,
    May, 1910.)
    Death—Absence as raising presumption of death — Disappearance in face of fatal danger.
    Evidence — Presumptions — Birth, death and survivorship.
    Though the unexplained disappearance of a man is not of itself sufficient foundation for the presumption of his death, yet from his disappearance in the face of a fatal danger his death may be inferred..
    Proceeding upon the probate of a will.
    James C. Cropsey, for proponent.
    Foley & Powell (Henry A. Powell, of counsel), for contestants.
    William S. Butler, special guardian.
   Ketcham, S.

The issue is whether or not the testator died, on or about the 30th day of April, 1908.

At that time he owned a houseboat, kept at Bockaway Park, in Jamaica bay, moored off the pier of a boatman e who was engaged in hiring and keeping boats.

The testator for a few weeks prior to the day mentioned was in the habit “pretty nearly every day” of going from Brooklyn to Bockaway Park and sleeping aboard his boat.

On the morning of the thirtieth of April he was working on his boat and then, according to his wont, left aboard of her a dog of which he was fond.

A scow belonging to the boatman lay inshore from the testator’s boat. Access to the scow could ordinarily be had by planks reaching from the shore to the scow.

The night of April thirtieth was stormy, with unusually high tide, high wind and heavy rain. The tide had turned about eight o’clock and was running out, and the wind was offshore and coincided with the ebb tide.

The distance from the scow to the houseboat was about eighty feet, and the depth of water at the houseboat was about four feet.

On the following morning it was found that the planks usually in position between the shore and the scow had been under water and that other planks had been placed so that a pei’son could have walked right from them onto the scow.

The testator reached Rockaway Park on the evening in question by train, arriving at about nine o’clock. The station was about 400 feet from the scow above-referred to.

The testator was last seen proceeding in the direction o£ the scow. He had rubber boots and at ordinary tide walked right out to his boat. There is evidence that the testator intended to go to his boat, for when a friend said to him, It is raining pretty hard; you had better be careful when you go to the houseboat,” he put up his hand and said, That is all right,” and walked away.

There is evidence that he made the attempt to reach k:3 boat, for a pair of trousers, well proven to have been his, were found the next morning hanging upon a nail in a closet on the boatman’s scow. In these trousers were found about twenty-two dollars in money and a bunch of keys belonging to the testator.

It is stated that he was intoxicated on the evening in question, but to what degree does not appear. Ho evidence is given of his existence after that night. The testator left a considerable estate, both real and personal.

These facts justify belief that the testator endeavored to put off from the scow to his boat and was drowned in the effort, and that his body was carried to sea.

It must be remarked that among the keys found the next morning, as described, was one which opened the testator’s houseboat, and that without its use he could not have obtained access to its interior; but so far as this fact is inconsistent with the theory above expressed it is overcome by the many other suggestions of the evidence and may be ascribed to testator’s condition and forgetfulness.

The rules applicable to unexplained disappearances have no relation to a disappearance in the face of a fatal danger. Where one has vanished from the view of his associates without any intimation of the reason or manner-' of his departure, it is held that there is no presumption 1(bf death sufficient alone to constrain a finding. Matter of Board of Education of New York, 173 N. Y. 321; Dunn v. Travis, 56 App. Div. 317.

But the reasoning of these cases would have little influence where a person, when last seen, was going into battle or falling from a ship in a storm.

The circumstances surrounding the testator when last seen were such as' to justify the conclusion that he died from the normal and usual development of circumstances then in process and there can be no more need or room for further inquiry than there is in the case of ordinary death in the sight of numerous witnesses.

The will is admitted to probate.

Probate decreed.  