
    BENJAMIN SMITH AND OTHERS v. THE EXECUTORS OF BENJAMIN SMITH AND OTHERS.
    On bill stating that J„ B. S. left the state more than seven years before, and had not been heard from, and founded on the presumption of his death thence arising, and answer admitting the absence, but denying that he had not been heard from, and stating that the defendants are informed and believe that he had been heard from, and replication — held, that unless the defendants made proof that J. B. S. was alive within the seven years, the presumption of his death arising at the expiration of the seven years stood.
    Benjamin Smith, deceased, late of Elizabethtown, died in November, 1824, leaving a will, by which, after giving several legacies, he gave the residue of his estate to the children of his nephews, Benjamin Smith and Israel Smith, share and share alike, “to them, the survivors or survivor of them at the time any dividend is made for them by my executors.”
    No dividend was made by the executors until 1840. The executors, when they made the dividend, retained the share that would be payable to Jasper JB. Smith, if he was alive.
    Jasper B. Smith left the state in 1829, and the bill was filed by the other children of Benjamin Smith and Israel Smith, to recover their shares of the portion so retained by the executors as and for the share of Jasper JB. Smith.
    The bill, filed in 1844, states that Jasper B. Smith left the state in 1829, being then a minor of about nineteen years of age, and had not sin.ce been heard from; and is founded on the presumption of his death thence arising, under the provisions of our “act declaring when the death of persons' absenting themselves shall be presumed.” Rev. Stat. 781.
    The answer admits that Jasper B. Smith left the state in April, 1829, but denies that he had not been heard from; and states that the defendants are informed and believe that he had been heard from twice since he absented himself from the state, once in. August, 1830, and once in the fall of 1835.
    A replication was filed and proofs were taken in the cause.
    
      J. C. Pods, for the complainants.
    
      Wm. Halsted, for defendants.
   The Chancellor.

The statute provides that any person who shall absent himself or herself from the state for seven years successively, shall be presumed to be dead, unless proof be made that he or she was alive within that time. The bill states that Jasper B. Smith left the state in 1829, and that he has never been heard from since. The answer admits his absence from the state since 1829, but says he has been heard from. A replication was filed by the complainants.

The words of the statute and the reason of the thing require that, unless proof be made that the person absenting himself has been heard from, the presumption of his death arises at the expiration of seven successive years of absence. The party seeking to avoid this presumption, or, rather, to prevent its arising, can do it only by showing that the absent person was alive within the seven years. There is nothing in the evidence to show that Jasper was alive within seven years after he left the state.

As the case stands in proof, he left the state in the spring of 1829, and the presumption of his death arose in 1836. No dividend had then been made, and by the terms of the will the estate was to be divided among the surviving residuary legatees.  