
    
      Ferris Pell and wife and Catharine S. Barclay vs. Elias O. Ball and T. Waring, Executors of Hugh Swinton Ball, and others.
    
    B. and his wife peiished, on board of a steamboat, at sea, by the explosion of 'one of the boilers, which shattered the vessel and caused it to fall tó pieces and sink in about half an hour. Upon evidence that Mrs. B. was seen, and was heard td call loudly for her husband, immediately aftei the disaster, and that he was not heard to answer, nor was heard or seen at any tiirie after the explosion ; Held, that Mrs. B. had survived her husband.
    Such general considerations as age, health, &e., may be resorted to, to aid conjecture: “But where there is any evidence whatever, even though it be but a shadow, it must govern in the decision of the fact.”
    It seems, where the benefits of survivorship were not mutual, the burthen Of proof rests on the side of the party to whom the survivorship would have been beneficial.
    Where one bequeathed to his wife all the property real and personal which he had received by his marriage, and also devised to her, specially, a certain tenement and lands, on which a portion of the money received by marriage had been expended; it seems that the wife would be entitled to both without any deduction.
    Heard before his Honor Oh. Johnston, at Charleston, January, 1839.
    Hugh Swinton Ball, with his wife and his adopted daughter, Emma, embarked at Charleston, on board the Steamer Pulaski, on the 14th June 1838. The vessel was destroyed, on that night, by the explosion of one of her boilers, and the greater part of the passengers perished ; among them, Mr. and Mrs. Ball.
    Mr. Ball had left a will, and, in the disposition of his estate according to its provisions, it became a question whether Mrs. Ball had survived her husband.
    The voluminous evidence to this point is so accurately and luminously digested by the Hon. Chancellor who delivered the following decree, upon the circuit, that a further detail of it would be only a needless repetition.
    
      The admirable preparation and argument of this cause have enabled the Court to form a judgment, satisfactory to itself, at an early day; which, at the earnest solicitation of the parties, it hastens to announce; although, for itself, in a matter so important, it would have desired further time, and better opportunities than the hurry of term time admits of, for assigning the reasons of its decision.
    The case belongs to a highly interesting head of law, upon which there is, as yet, very little of positive decision; particularly in the common law courts. I refer to eases where some right is made to depend upon the question, which wag the survivor oí two of more persons, who have perished by the same calamity.
    Much, I may say, every thing, depends, in my conception, upon two considerations : First, is it open to observation and evidence; or is it withdrawn from all scrutiny, and consigned to conjecture 1 Second, the nature of the right dependant upon the survivorship: is it mutual, or is it of such a nature that if one of the parties happens to be the survivor, he derives nothing from the other, but simply retains what belonged to him; whereas, if the other had been the survivor, he would have had an accession from the deceased!
    Where the nature of the calamity is entirely unknown, it would seem, at first view, that there are no rules of reason, or £»f law, by which the case can be decided; and yet, as there ate cages of this description, in which there must be a decision: in which a refusal to decide, would be a decision; so there ard rules; applicable to some of them, very well known, particularly to the common law, by which a decision, entirely consistent with reason, can be made. I allude to the rule which must, without contest, be applied to a case where the persons, upon whom the right depends, may have gone abroad, and have not been heard of for such a length of time, as to faise the presumption of their death. The circumstances under which they perished are wholly unknown, but the rule is well settled, that the last seen or heard of shall be adjudged the survivor.
    Yet there may be cases of absentees, in which the rule mentioned cannot be applied: as where both partias emigrated together, were last seen together, or were last heard from at the same time. This would reduce them fvithin what, in the argument, has been called the conjectural class. There are other conceivable cases: not only conceivable, but which, indeed, not unfrequently occur, where, although the nature of the calamity is inferred with a high degree of probability, yet the priority of death, among the victims, is conjectural: as where they have sailed in the same vessel, which is known to have been lost, leaving no surviving witnesses, or has never been heard of. There are other cases, still, where the nature of the calamity is well known, where, indeed; the catastrophe has happened within the view of many witnesses — where the survivorship must be left to conjecture; as where the victims were inclosed within a house, and perished by a sudden explosion.
    Now, it is admitted, that within this category, the English and American courts have hitherto carefully avoided the adoption of any rule of decision. The cases have gone off on compromise, or were decided upon a rule adapted to the nature of the question before the court, and not to the question of right, as transmitted by survivorship. Thus, Rex vs. Dr. Hay, (1 W. Black. Rep. 640,) where General Stanwix, with his wife and a daughter, by a former marriage, sailed from Dublin to England, in the same vessel, which was never after-wards heard of, the question was, who was entitled to the administration of the General’s estate — his next of kin, or the maternal uncle of the daughter who had perished 1 For the maternal uncle,- it was contended, that, in analogy to the civil law, it should be presumed that the daughter survived the father. But the court held that the question before it, concerned the right of administration only, and not the right of distribution, and decreed in favor of the next of kin of the father. So, in Taylor vs. Diplock, (2 Philim: 361 — 1st Eccles : Rep. 250,) where a husband appointed his wife executrix, and residuary legatee, and both were subsequently shipwrecked together, and drowned, and the contest was for the administration, between the next of kin of the husband, and the next of kin of the wife. The evidence left it doubtful which of the parties survived, upon which the Judge granted administration to the next of kin of the husband; remarking: “I am not deciding that the husband survived the wife.” There are some observations, in the opinion of the Court, which do bear upon the question of survivorship, and intimate that, as the wife’s kindred claimed the administration on the score of her survi-vorship, they were bound to prove it. But the closing remark of the Judge shews, I think, that in questions of administration, the Court does not feel itself called upon to undertake a very exact decision of the fact of survivorship; the right of distribution being always left open. So, also, in Wright vs. Sar-muda, (2 Phillim. 266, [note] S. C. 1 Eccles. Rep., 253,) reported also under the style Wright vs. Netherwood, (2 Salk. 593,) [note] where the subject of survivorship was somewhat considered, the judgment was given on the real question before the court, which was, whether a will, made bv Netherwood, was, under the circumstances, revoked by his subsequent marriage, and the birth of issue. In the case of Selwyn, (3 Hag. 748; 5 Eccles. Rep. 254,) where the court treats somewhat of the same subject of survivorship, in conjectural cases, the question was, as to the right of administration: and it was granted to the applicants without objection.
    I think I may safely conclude, that (as observed by Chancellor Kent, 2 Com. 350, part 5, Lect. 37,) “the English law has hitherto waived the question.” I am not, however, prepared to abandon, as delusive, all efforts to attain rules capable of deciding the fact of survivorship, even in cases denominated conjectural. I have said, that there are cases where, owing to the quality of the right, depending on the survivorship, the exigencies of society demand a decision, and will take no denial. Where the right .is not mutual, it may be safest, and perhaps, in such instances, the rule should be, as stated in some of the cases to which I have referred, to abstain from any thing approaching to conjecture, and leave the right untouched, unless it can be shewn, by reasonable evidence, that the party who is to take derivately, was the survivor. But there are instances, suchas cross remainders, and partnerships, and such as would have arisen on joint tenancies before the abolition of the jus accrescendi, (as in Rroughton vs. Randal, Cro. Eliz. 502,) where there must be a decision, and to which the rule just mentioned cannot be applied, without in fact deciding for one of the parties, and against the other, by refusing to decide at all; and where indeed that may not be the only consequence. I should, therefore, be loth to admit, that our law is not capable of reaching and deciding these the cases, and all others, which the peace and order of society required to be determined. And, indeed, there will generally be found something in the condition of the parties, their age, strength, health, and habits, which will, in some degree at least, rescue the decision from the imputation of rash conjecture, and place it rather upon the foundation of evidence and probability, than tremulous presumption.
    But where there is any evidence whatever, even though it be but a shadow, it must govern in the decision of the fact. There is nothing which more distinguishes the common law, than the preference which it constantly gives to evidence, over all artificial presumptions, unless it be those which are essential to the judicial institution itself, and to the preservation of social order. The common law encourages a resort to every fountain from which truth can be drawn; it listens to witnesses; it looks into the internal evidence of things; it contemplates the whole of the circumstances, and then draws its conclusions, according to the preponderating probability.
    This is the rule of reason, which has a place, and is of the essence of every code, in every country. Thus in the Code Civil, (liv. 3. tit. 2, no. 720,) it is provided that if several persons entitled to inherit from each other, happen to perish in the same event, (to which the Louisiana code adds, by way of illustration, “such as shipwreck, or battle, or conflagration,” p. 298, chap. 4, art. 930) without the possibility of knowing which died first, (here is the primary proof) the presumption of survivorship is determined by the circumstances of the fact; (here is the secondary proof,) and in default of these (the internal circumstance or circumstances of the fact,) lastly, by rules enacted in the code, as applicable to cases of a mere conjectural character.
    If the case is divested of proof and the exigency demands it, resort should be had to extraneous circumstances. If it contains internal evidence and no more, that must be resorted to. But if, to this, witnesses can be added, bearing positive testimony, or detailing facts from which reasonable inferences can be drawn, these furnish the most satisfactory proof.
    In what I have said hitherto, I have contemplated a case, where the cause of deathjconsisted of one disaster, whether of more rapid or of slower operation. But where the danger-consisted of a series of successive operations, separated from each other, and each capable of inflicting death upon the victims according to the degree of the exposure to it, there is certainly more scope for testimony, and for inference, from circumstances, than in other cases.
    Let us now turn to the case of Mr. and Mrs. Ball, and see, if, from the mournful circumstances of their fate, we can extract any thing to solve the important question, to Which it has given rise.
    The Pulaski, according to the testimony, left Savannah on Wednesday the 13th of June 1838, with many passengers, and arrived at Charleston that evening. The next morning, Mr: and Mrs. Ball, their adopted daughter, Emma, and servant; having gone on board at Charleston, she departed for the north, and pursued her course, until about 11 o’clock of that night, when, most of the passengers having retired to their berths, the starboard boiler exploded. By the explosion, áft extensive breach Vvas made on the starboard side of the vessel. Her main deck was blown off; particularly on the starboard side, thus destroying the communication between the forward and after part of the steamer. The forward part of the upper deck, (called the hurricane deck, in contradistinction to the after part, which is called the promenade deck,) was blown off, carrying with it the wheel house, in which the commander of the boat, Capt. Dubois, was sleeping at the time. The gentlemen’s forward cabin was much torn; its floor ripped up, and its bulk head driven in ; and Major Twiggs, whose berth was there, gives us reason to suppose, that many perished, in that part of the vessel, by the explosion. The gentlemen’s after cabin (which was under the main deck, and immediately beneath the ladies’ cabin, which was on that deck) was also injured. Some part of the floor was ripped up, the bulk head partly driven in, and the stairs communicating with the deck, more or less shattered. The vessel was careened to the larboard, and as she dipped, began to fill with water. In a very short time the hold Was filled, and the water gained to the level of the floors of the gentlemen’s' cabins.. It rose higher with great rapidity> the vessel settled to the centre, where the breach was; and all hope that she could hold together was abandoned. She parted amidships, and the forward and after parts pitched into the water, towards the Centre,- at an angle of nearly thirty degrees. The gentlemen's after cabin was now entirely filled, and the forward cabin was certainly in as bad a condition. There were some persons on the forward part of the vessel, nearly all of whom speedily perished; but the greater portion were in the after part, including one or two who had passed, by swimming fr&m the forward to the after part. Of those on the after part, as many as coaid climbed to the promenade deck, but there were many, mostly ladies, among whom was Mrs. Bali, who remained on the main deek. These, as that deck sank deeper and deeper, retreated along the gang-ways, by the ladies’ cabin, towards tfie stern. The promenade deck, by the action of the Waves, was burst from the top of the boat, and was submerged with all that were on it. Whether the stern of the boat was submerged at, or after this time, is uncertain. Some of the witnesses think it was submerged even before the promenade deck, others that it was not submerged at all. All these events had taken place, according to most of the witnesses, in about from forty to fifty minutes; according to others, in less time.
    Some few escaped in the boats, others on parts of the wreck, and others on rafts constructed by them as they could, amid the horrors of the impending destruction.
    Of Mrs. Ball, nothing is known, after the submerging of the promenade deck, nor for some time before. Before that event, lief cfies were heard by onq witness, who had gained the promenade deck, as they proceeded from the place she still occupied' on the deck below. No witness speaks of her after-wards.
    Within a few minutes after the explosion, according to one witness who knew her, she came out of the ladies’ cabin, and began to call upon her husband. The scene was one of terror, as may be' supposed, but although a crowd was instantly gathered at that part of the vessel, there was not much noise. The surrounding horrors seem to have subdued the sufferers, and in mute astonishment they contemplated the fate which awaited them. Even the wheels had stopped. Nothing but the sound of the waters, which were somewhat disturbed, and the hasty exclamations of friends, as they souught each other out, and the noise occasioned by such preparations as the more active and prudent felt themselves called upon to make, for themselves and others under their charge, were heard. But the voice of Mrs. Ball was heard above all others, calling upon her husband. She ran forward to the chasm caused by the explosion; retraced her steps, and continued to traverse the starboard gangway in search ot him, uttering his name in tones so elevated by her agony, that they reached most parts of the vessel, and seem to have made an indelible impression upon all who heard them. Her cry, according to one witness, was a cry of bitter despair and anxious enquiry; and, according to all, it was lifted in shrill tones, carrying an irresistable appeal to all hearts.
    Mr. Ball was neither seen nor heard. Mrs. Ball was heard and seen by many, but no response was heard to her cries, nor was any one seen to approach her, for her protection or consolation. Two witnesses, who knew Mrs. Ball, saw her, but did not see him. One of them passed and repassed her, in hurried manner to be sure, but did not discover him.
    He was neither seen nor heard after the explosion, unless he was the person referred to by two -witnesses, who state the following circumstance. Very shortly after the explosion, a boat was let down on the starboard side of the steamer, into which some persons descended As the boat was lying below, a gentleman came to that side of the deck, and throwing a coat into the boat called to those in it to hold fast a moment, and instantly disappeared. Hepever re-appeared, but, the next day, the coat was found to be a black dress coat of a large size, (such was the size of Mr. Ball,) and in one of the pockets was discovered a shirt collar, on which was written the name of Ball, with some initials, which the witnesses have forgotten.
    Now, these are the circumstances of the case. It is not a case of an unknown calamity, nor of one withdrawn from observation; nor is it a case where the calamity' was of instantaneous operation. It is a case for testimony, and to be decided on testimony.
    I incline too, to the opinion, that as the right, on the part of Mrs. Ball, was derivative, and without mutualiiy, the burden is upon the plaintiffs, who claim through her, to prove that her right vesied — that she was the survivor. Without considering it necessary to decide that this is the proper rule here, I shall .undertake to be governed by it. No conjectural inference, no inference except from evidence, will be drawn on behalf of the plaintiffs. They must make out their case, or the rights of Mi'- Ball will be permitted to remain as they were. But because the plaintiffs are to prove the fact of survivorship, it does not follow that they are to prove it to demonstration. All reasonable inferences will be drawn from the best evidence, suggested by the case; and although at last we may be far frorp arriving at any thing like certainty, although, indeed, there may remain much obscurity and doubt, yet if we have evidence only sufficient, to lead us out of the regions of conjecture, we must follow it.
    1 shall not, (because it is unnecessary) resort to the bare fact, that Mrs. Ball was the last person seen, or determine whether that fact, alone, is not sufficient to raise a presumption, in analogy to the doctrine which prevails in cases of absence. I incline, however, very strongly to the opinion, that where the evidence has traced the parties into a common danger, which proved fafal to both, the last one seen or heard within .the operation of'the cause of death, must be adjudged $he survivor, unless there be something, in the nature of the circumstances, to rebut the presumption, or render it inapplicable. The analogy to cases of absence is very strong. The proof, here, that the death has occurred, stands in the place of lapse of time; which is employed only as proof that the parties have died. When they died, relatively, may be judged of, in this case, as in that, by considering which was last known to be alive.
    1 prefer, however, to put the case upon the ground of probability, arising from the evidence; upon a belief engendered by a combination of the circumstances; and upon the superiority of positive proof over conjecture or even probability.
    It will be remembered, that the explosion produced its most fatal effects in the gentlemen’s forward cabin, and that was the first part of the vessel which submerged. That the after cabin was also much injured. That from the forward cabin many persons never escaped. From the after cabin, so far as we know from the evidence, all did escape except Judge Cameron, an infirm old man. But, from the description given of its condition, it is possible that some others may have been detained, either from being hurt, or otherwise, until the cabin filled.
    It is certain that Mrs. Ball escaped the explosion. Is it certain that Mr. Ball did ?
    Mr. Ball engaged a berth in the after cabin. The probability is that he got it, but this is far from certain. The boat came with many passengers from Savannah, which may have occasioned Mr. Ball to be displaced and transferred forward. I think, however, it is not probable he was so transferred, because, by an arrangement between the agents in Savannah and at Charleston, they were entitled to let the berths in alternate order, throughout the boat; and we know that some of the passengers, who came from Savannah, had not the advantage of pre-occupying the after cabin, and that some of the Charleston passengers were let into the cabin; Mr. Ball, therefore, was probably in that cabin. But there is a probability that he was in the forward cabin, and if so, in the greatest danger, from the explosion. Mrs Ball was clear from that danger certainly, Mr. Ball only probably. Here was one chance for his destruction, from which she was exempt.
    Supposing that Mr. Ball was in the after cabin. The probability is that he was not killed by the explosion. The certainty is that Mrs. Ball was not. But the condition of that cabin, as described by some of the witnesses, coupled with the fact, that at least one man was not able to escape from it, before it filled, renders the destruction of Mr. Ball in that place, by no means a visiohary supposition.
    Here was another chance for Mr. Ball’s destruction, from which his wife was certainly free.
    On the deck. We know that Mrs. Ball was there, as yet uninjured by the explosion, the filling of the cabins, and all preceding dangers, from which many had already perished. This is certain. Is it certain that Mr. Ball had hitherto escaped, and was the person who threw the coat into the boat? It may be that he was the man. I think it hardly probable. I should have thought that he was the man, if he had been seen at any time near his wife, or had answered to her heart rending calls. But it is more probable, that some one else, in the hurry of the moment, may have mistaken Mr. Ball’s coat for his own, and thrown it into the boat, than that an affectionate husband and brave man, as Mr. Ball is proved to have been, should have heard such appeals as were made to him, by his wife, and should, at such a time as that, have failed in his duty to her.
    We are sure that she was there. I think it was not probable that he was.
    We have indubitable evidence that she had so far escaped: the same evidence, with a moral force which cannot be resisted, convinces us that he must have already perished, or he would have been at her side.
    Here are circumstances, some of which, until our nature shall be utterly changed, cannot well deceive. Here is a combination of circumstances, all tending to the same conclusion: and although some of them, by themselves, are not very forcible, yet, when it is seen that they all harmonize, the effect must be to beget belief.
    I have, from all these considerations, formed the opinion, that Mrs. Ball survived her husband.
    ■ It remains to consider the effect of this fact üpdn the distribution of the property, under the will, and by operation of law.
    The legacies must be disposed of, as provided for in the contingency, which has happened, of the testator’sdeath without leaving issue. Such as have lapsed must be distributed, (for want of a residuary clause in the will) as intestate property between Mr. Ball’s wife, and mother, according to the construction put upon the acts of 1791 and 1797, in the case of Trapp vs. Billings, (2 M’C. Ch. R. 403.) .
    The legacy to the adopted daughter, Emma, clearly lapsed; and is so distributable.
    The interest in the crops, as defined in the will, given to Alwyn Ball, in conjunction with Elias O. Ball, does not lapse by the pre-decease of Alwyn, but vested, (according to the case of Percival vs. Thontas, recently decided, Supra, p. 21,) in Elias O. Ball, as survivcfr.
    A question has been raised, though not argued, whether the half of the crops, as defined in the will, given to the wife, and in the event which has happened, of her dying before Nonus’ majority, limited over to the brothers of the testator, until another event in the will described, is to be bonsidered lapsed and intestate, after that time. The impression of the Court is, that it does not lapse, but that there is evidence of a strong intention on the face of the will, that this half should follow the disposition made of the other half.
    Another question was suggested : whether, if it should turn out that the testator devoted any portion of the money acquired by him, in consequence of his marriage, in the purchase and improvement of other property, specifically bequeathed by him to his wife, (Mepshew and its pleasure grounds, for instance) the amount so expended, should not be deducted from the amount to which she would have been entitled as having come to Mr. Ball through her. As the point was not argued, 1 can only say, that I cannot call to my mind any authority or principle upon which Mrs, Ball would not be entitled to the whole.
    It must be referred to the commissioner to take the accounts, and to report a proper mode of making a settlement upon Mrs. Taveau, of what she may recover in this case, according to the prayer preferred in her answer.
    In closing this judgment, I cannot sufficiently testify my respect for the honorable disposition manifested by all parties. An appeal to the law was made, only because the minority of some of them rendered a compromise difficult, if not impossible. It is not a case for costs. Let the costs be paid out of the estate before distribution, and deducted, from the amounts coming to the parties, rateably.
    The defendants appealed on the grounds,
    That it was not sufficiently proved that Mrs, Ball survived her husband.
    That the representatives of Mrs. Ball should have been put to their election, either to relinquish the devise of the Mep-shew House [specifically bequeathed] and receive the amount expended, from her funds, thereon; or, accepting the devise, to release their claim to the money expended.
    
      That the bequest of the cfdps was hot to Alwyn & Elias 0. Ball, jointly; but to each, severally; and therefore, Elias' could not take by survivorship.
   Curia, per

Johnston, Ch.

The fact, that the counsel in' the Circuit Court atteiided exclusively to the question of sur-vivorship, which was the leading one in the case, must be my apology for two palpable errors into which I fell, in delivering-my judgment. It certainly was a strange misconception to suppose, as I did, that the bequest of otíe half the crops was to Alwyn & Elias 0; Ball, conjointly, whereas the will expressly directs that it “be equally divided between my brothers,-Alwyn & Elias' Octavus, until my nephew*' Elias Nonus, is of age;” and then to him, &c.

The cases quoted, in Percival vs. Thomas, ai‘e an unbroken current of authority that the direction, to' divide equally between the two' brothers, created a several,an d not joint interest in them. The consequence is that, upon the death of Al-wyn, in the life time of the testator, his interest in this legacy lapsed, and for want of a residuary clause, became devisable between the testator’s wife and mother.

The other error relates to'the half of the crops given to' Mrs. ílall. This half is given to her during her life, and if she should die during the minority of Elias Nonus, then the income, from the time of her decease until Nonus shall attain majority, is to be divided between Alwyn and Elias Octavus. But there is no bequest of this part of the crops beyond the time of Nonus’ majority, either to Nonus, himself, or to any other person. Mrs! Ball died during the minority of Nonus, by which event one moiety of this half of the crops vested in Elias Octavus Ball until the majority of Nonus, at which time it becomes intestate and distributable between the representatives of Mrs. Ball and the mother of Mr. Ball. The other moiety, which would have gone to Alwyn, lapses inprcesenti, in consequence of his death, and is distributable, as intestate-between the same persons.

To this extent the decree must be reformed. In other respects- the Court is satisfied with its correctness and it must be affirmed.

Upon the leading; question, of survivorship, the decree does not proceed on any principles df law, either new,, or speculative. It assumes that the burden of proof is upon the plaintiffs and that they must produce convincing evidence. What more could the appellant desire? The more I have considered the testimony, the more am I satisfied with the conclusion adopted in the circuit decree. The form of a decree was proposed here for the purpose of carrying the circuit decree into effect.. It should have been proposed to the Circuit Court,, and has been mislaid..

Bnt leave is given to apply to the Circuit Court for any decree, or direction necessary to cany its decision, as now modified, into effect

Harper and Dunicin, Ch., concurred.

Johnston, Ch.,

was unavoidably absent at the- argument of the counsel for the appeal, in reply, and therefore declined giving any opinion.

{ty®' The imll of Mrs Ball, might have been desirable for the elucidation of some of the minor points made; but there is no copy or abstract of it in the record of the Appeal court.

The following argument of Col. Hunt, for the appellants, on the main point in this issue, will put the reader in possession of those features, as well of fact as of reasoning, Upon which the appellants relied, more satisfactorily than any attempt of the reporter to digest impartially the encumbered mass of testimony.

Statement of the leading facts.

Mr. and Mrs. Ball where passengers in the Pulaski, on the night of her destruction. At supper, both were seen; Mrs. Ball occupied the ladies cabin. The berth of Mr. Ball was in the gentlemens’ after cabin, immediately below the ladies’ cabin. About 11 o’clock, at night, the explosion occurred. The force of the explosion was forward. It filled the forward cabin with steam, and killed and wounded several persons. It also broke the starboard side of the boat, and blew off the upper deck in the centre, leaving that part of it, over the ladies’ cabin, entire. A rush of air was all that was felt, in the after part of the boat, which tore ofi a few boards from the stairs and a few boards of the cabin floor. But all agree that the occupants of the after cabin, except old Judge Cameron, in all probability, got on deck — no one was proved to have perished, there, merely from the explosion. In a space of time, estimated from twenty-five to forty-five minutes after the explosion, the boat filled in the centre, and, in the act of sinking, carried the fore and after parts under water, and then broke, letting the machinery sink; when the wooden part, that is, the decks, again rose out of water. A few among the passengers got on various fragments of the wreck, and of those, a portion were finally saved. No one of those saved saw Mr. Ball — so that when he perished is absolutely unknown. Mrs. Ball, during the interval between the explosion and the sinking of the decks, was on the main deck, near the door of the ladies’ cabin, and was doubtless drowned when the vessel sunk, as she was too feeble and terror stricken to struggle successfully in the water. Now these facts present the following general positions :

1st. There were three apparent and sufficient causes of death, which overtook Mr. and Mrs. Ball and the rest of the passengers — to wit: the explosion of the boiler — the sinking of the decks, and finally the exhaustion and exposure of such .as escaped the first two, and perished on the rafts and fragr tnents.

2d. There were two apparent and known means by which ,the lives of some of the passengers were prolonged, and a few finally saved — to wit; the boats, and the fragments of the wreck.

3d. The great mass, of those who perished were drowned .when the vessel sunk, inwards and down, until relieved of the weight of the machinery. The explosion destroyed another class — how numerous, is left to conjecture; but they were .those who were on the hurricane deck, midships, or in the for.ward cabin- — there, several are known to have been injured. Not one has leen known to ham leen injured in the after cabin.

The number lost, of those who got on such floats as accident threw in their way, cannot be estimated; but, unhappily, it is too true that several met their death for want of prompt .aid, and those who did escape owe their lives to being picked up by a vessel passing.

Now, the position of the complainant is, “ that Mrs. Ball did not die until after her husband was dead,” and this they undertake to prove, so as to acquire an estate by establishing that fact — and as the establishment of their case requires that, they should prove when Mr. Ball died, in order to get at the conclusion that his wife survived him, let us consider the leading rules. It is for the actors to prove what they allege, by competent legal testimony. “ The party who alleges the affirmative of any proposition shall prove it,” — Gilbert’s Law of Evidence, p. 148.

The fact that Mr; Ball was dead, at the time his wife was heard on the deck, must then be proved. The case of Wilson vs. Hodges, (2 East, 312,) establishes the position that when a person is proved to be alive, he will be presumed to be so until his death is proved — and absence for seven years is the least period known to the law, sufficient to lead to the conclusion, that a person, not heard of, is dead — that being a life, in the estimation of law. It follows, from this brief outline, that the death of Mr. Ball must be proved, like any other fact, by competent evidence' — this evidence must be either direct, or circumstantial. It is admitted there is no direct evidence. Resort must then be had to circumstantial evidence, as -understood by the common law — and not to those artificial, and of course, arbitrary rules, which, in the absence of all proof, are resorted to by positive enactment. What, then, is sufficient circumstantial evidence, to prove the death of Mr, Ball, at a period, anterior to the one when his wife was heard .to call on him? Certainly it must be such as leaves no other conclusion — if it merely prove he might have been dead, it •fails to prove the fact, and only establishes the possibility. To amount to proof, -“there must be a necessary and usual connection between the facts and circumstances, and the conclusion sought. Testing the evidence by these rules, let us examine the facts.

The only cause of death, to which Mr. Ball was exposed prior to the time his wife was known to have been drowned, ,was the explosion — and the whole evidence concurs that not .one of the passengers, in the after cabin, was known to be killed by that, but that, from fifty to sixty actually assembled on the decks, after that event. There is, then, no proof that Mr. Ball was killed by the explosion. The inmates of his cabin are known, generally, to have escaped — not one is known to have perished — nay, not even to have been injured. Mr. Lamar, who occupied the captain’s office, opposite the door of the ladies’ cabin, was not even waked by it. Here, then, there is still, a total absence of any fact, even to excite a surmise that Mr. Ball was an exception to the general result. The next and only cause of death was the sinking of the whole mass. And to this, Mrs. Ball was certainly exposed, with no hope of escape. Admit that Mr. Ball was exposed to the same catastrophe, he could escape — he might have escaped. Another passenger, who had lashed his wife to a coop, did, after the vessel sank, rise near, a hatch, on which he reached the promenade deck, and was a witness in this case. So far, then, from it, being proved, that Mr. Ball was dead, before the decks sank, there is no cause of death to which he was exposed— and the great and fundamental error, in the reasoning on the other side, is the resort to negative testimony, which, proverbially, “proves nothing.” He was not seen — he was not heard— therefore, he was dead — although no cause of death is traced to him.

As relates to the merits. — The case made is this: By his will, H. S. Ball gave to his wife his household furniture, servants, &c. and in case he died without children, he gave her all the property received by him in marriage, and other legacies out of his own estate. The claimants allege, that Mrs. Ball survived her husband : that all the provisions made for her, vested, if but for the few awful moments which transpired after the explosion of the boilers of the Pulaski; and that, consequently, her legal representatives are entitled to the same. To place the equity, or justice of the case in a clear point of view, it is only necessary to say, that Mr. Ball never contemplated a legacy, or provision for such a transient and unprofitable end; and, if the survivorship be established, it will be a clear violation of the intention of the testator, and the complainant will succeed upon a naked rule of law. Had Mr. Ball contemplated the death of his wife, within thirty minutes of his own, he would not have provided for her as he did. It was with a view to her prolonged existence and comfort that he made the liberal provisions, now claimed by her representatives, which were intended only for herself. There is, then, no reason to regret the result, if the decision should be, that the parties are decided to have perished together, and the estate should be disposed of accordingly. It is not one of the least interesting circumstances, attending this thrilling tragedy, that on the 2d of April, 1836, Mr. Ball attached, to his will, a codicil, which’ not being executed in due form of law, is inoperative, by which he actually anticipated the fate that befel him and his wife: — it is in these words, “should any accident occur, that my wife, Anna E. Ball, and myself should die at the same period, or it was not certain whether she survived me, and had made no disposal of the property left her in my said will, and should my adopted daughter Emma be alive, and I leave no heir oí hers, then do I bequeath all my wife’s property, mentioned in said will, to Emma Ball, to be paid her when of age, but, if she die3 before reaching the age of twenty-one, leaving no child or children lawfully born, then the property alluded to goes to whoever the law may direct to be entitled to the' property, it would descend to said child or children.” This codicil, however, is only good, “provided my wife should make no disposal of the property she is entitled to. If she survives she has the right to do so, if she neglects to will away her property, this codicil will hold good in the event of her dying intestate” — strange to say, Mr. Ball added that, “ as the above involves no real estate, 1 concluded witnesses unnecessary:: see Grimke’s Law of Executors: H. S. Ball.” Since the publication of that book, the law has been altered, and witnesses were necessary; so that, if the codicil had been in fact executed in presence of witnesses, then the complainant would have had no claim, but the estate would have gone according to law. But if the strict law does carry-over the estate to strangers to Mr. Ball, it will, of course, be acquiesced in. Still those, whose claim rests upon the rigid provisions of the law, have no cause to complain that the law should prevail, when in favor of their opponents. I only quote this codicil to prove that Mr. Ball, himself, intended, if his wife only survived him for a moment, contemplating some disaster from frequent tra-velling by sea, or if she did not dispose of her estate, it should1 go as the law directs, to his own legal representatives. He contemplated the event that he and his wife might, as they did;perish together; and as it also might happen that Emmashould survive them, he provided for her, but that failing, and if his wife did not survive to dispose of her legacy, it should' go as the law provides. In short, if it was not certain whether she survived,” he had no other object of his bounty but Emma, and that failing, he was intestate. As it is admitted that this codicil has no legal operation, the question arises, didMrs. Ball survive her husband, so that his bequest to her vested and descended to her legal representatives, or next of kin! or did both perish so nearly together, that no human testimony can establish that one, in fact, survived the other. If so,then the complainants fail. They claim upon the allegation, that Mrs. Ball did survive her husband. This is the allegation of a fact, to be proved by the party claiming the benefit of it; and it necessarily involves the allegation that Mr. Ball, in fact, died first. This renders it necessary, not merely to prove that Mrs. Ball was alive at any given period, but that Mr. Bell wasactually dead, prior to that period; so that the facts to be proved, are the time when Mr. Ball died, and that Mrs. Ball was alive after that time. This positive, substantive fact, like' every other, must be proven, not conjectured. If circumstances render it impossible to say when Mr. Ball was dead, then' the survivorship of Mrs. Ball is simply not proved, and the' complainants fail to establish their position. As to the mode and manner, in which the positive allegation that Mr. Ballwas dead, at any given time, and that his wife was alive after that time, is to be established; the plain good sense, whichheaven has bestowed on all mankind, is as competent to direct us to the conclusion, as the most extensive learning of the’ most erudite professors of the law, provided we exclude tlW arbitrary and often fanciful rules prescribed by the learned doctors of the civil law.

And I claim that, in this State, the rules of evidence prescribed by the common law prevail, and when they conflict with those assumed by the civilians they must preponderate; To enlarge upon this point would involve me in tedious and unnecessary diffusenes.

But the boasted rifle of the Code Napoleon, over which civilians chuckle with so much admiration, so far as it adopts arbitrary rules, is subject to much cavil. The rule laid down is, in substance, that where two persons, who may inherit from each other, perish by one common calamity, and the fact, which died first, cannot be esablished by positive testimony — the next resort is to circumstantial evidence : so far, the rule is consistent with the common law, but the code then prescribes, if neither positive evidence, nor circumstantial evidence, can fix the fact of survi-vorship, certain arbitrary rules, which the stubborn good sense of the common law has not adopted. But, when neither positive, nor circutnstantial evidence can establish the fact, which died first, the natural conclusion, that both perished together, is the only one to which the mind can come with any shew of reason. Indeed, the Chancellor seems to admit that his decree is based upon circumstantial evidence, and, without quoting authorities, I shall assume that as the true ground of the decision. But, in order to understand the argument, it is first necessary to define, clearly, the propositions to be established, or the fact to be' proved. The claimants base their demand upon the fact, that Mrs. Ball survived her husband, which is exactly the same thing as alleging that H. S. Ball died before his wife; so that it becomes absolutely necessary to prove, either by positive, or circumstantial evidence, the precise period of his death, and then, that his wife was subsequently alive; any failure .will be fatal. Í take it, that it is one thing to prove that Mrs.- Ball was living at a particular time, and quite another tó prove' that her husband was then dead.Admitting, then, that the main proposition is to prove the time when Mr. Ball died, I will, after a few words upon the nature of circumstantial evidence, proceed to collate the facts.

The burden of proof is, clearly, on the complainants; uncertainty is to them fatal, and no mistake is greater than to suppose, that proving Mrs. Ball to be alive, at any period after the explosion, shifts the burden to the defendants, unless the very lame and impotent conclusion is insisted upon, that to prove the wife to be living, is prima facie evidence that the husband is dead. In truth, the defendants are passive; the complainants must prove by positive, or circumstantial evidence, not the existence of Mrs. Ball, but the death of her husband; and I will examine the rules of presumption on that point. That there is no positive proof when Mr. Ball died, is admitted. The fact of his death, not her existence must be proved by legal evidence, that is, facts which will establish it so satisfactorily as to amount to legal proof. If this cannot be done, then the survivorship is not proved. It is the error which has run through the reasoning of the complainants, that to prove Mrs. Ball alive, was to prove she survived her husband; when the time of Mr. Ball’s death, alone, can enable them to shew her survivorship. Let us then examine the true principles of circumstantial evidence, and apply them to the facts of this case. The following contains the very pith and marrow of circumstantial evidence. “In consequence of the frequent failure of direct and positive evidence, recourse must be had to presumptions and inferences from facts and circumstances which are known and which serve as indications more or less certain of those which are disputed and contested. It is consequently, a matter of the highest importance, to consider the ground, nature, and force, of such presumptions, and to enquire what facts, either singly, or collectively, are capable of supplying such presumptions as can be safely relied on.”

“ The ground of all presumption is the necessary, or usual connection between facts and circumstances; the knowledge of which connection results from experience and reflection. A presumption may be defined to be an inference, as to the existence of a fact not actually known, arising from its necessary and usual connection with others that are known.”

“The force of presumptions is almost intuitively perceived by all mankind, is recognized by the illiterate, as well as the learned, and acted upon daily, in the most momentous, as well as in the most common and trivial concerns of life. Presumptions could never have been adopted as the means of 'proof before a jury, if their nature and force could not be estimated by men of plain, ordinary sense and discretion.”

These rules are so obvious, that to state them is enough to challenge the asse.nt of every well poised intellect. The fact, then, when did Mr. Ball die 1 can be as well decided by any intelligent citizen, as by the most adroit casuist. It is not necessary to follow the shadowy reasons of acute civilians, collected in libraries, but any traveller, sea captain, or man of experience, can put together the facts, and arrive at the true elusion. It is not necessary, in this case, for us to show that Mr. Ball was alive; it is for the complainants to shew that he was dead, at the point of time when the main deck sunk and precipitated its occupants into the ocean; for the feeble frame and utter terror of the ill-fated lady of Mr. Ball, forbids the supposition, that she could have reached, or even used any means of safety, when once engulphed in the waves of the ocean; when the deck sunk, she too, perished. Here, then, we have positive proof of the exact time when Mrs. Ball died; it was not more than forty or fifty minutes, some say twenty-five minutes, after the boiler exploded. Having thus fixed the period of her death, beyond doubt, unless equally positive testimony is produced as to the period of Mr. Ball’s death, and it is fixed prior to that moment, the usual presumption prevails, that he was still alive. Many did survive that event, not only a few minutes, but days ; and as Mr. Ball was a good swimmer, he may have caught a fragment of the wreck and survived a long time. As to Mrs. Ball, this was impossible; feeble, terror-stricken, and unused to the water, she, like every •lady not on the promenade deck, must have perished instantly. So far from there being any proof that Mrs. Ball survived her husband, the evidence is fully competent to establish that ■he survived her. They were both well at supper. No cause of death occurred ’till the explosion. The testimony estab-■lishesth at no one in. the after cabin, except Judge Cameron, perished there. Mr. Ball had his berth there. It was near near his wife: he had no motive to go to the forward cabin: no pne was killed by the explosion in his cabin: it follows that no cause of death was brought to bear upon him prior to the sinking of the deck that certainly destroyed Mrs. Ball. It is not certain it destroyed him. Her death, then, being fixed, and not his, the presumption of survivorship is actually in his favour. The Judge, I think, has mistaken the law as to presumption of death. Death is a fact, and must, like all other facts, be proved by testimony. It is true that, for the purpose of convenience and in analogy to some statutory provisions, ,one who is absent from his friends seven years, and not heard ■from, is treated as dead. That is, his wife may marry without being guilty of bigamy; so if he have a life estate, the one .entitled in remainder may take the estate; but, these are only .rules of convenience. See Starkie on Evidence, p. 37. The :man may not be dead, nevertheless. But, that a man, alive at .supper time, is presumed to be dead at 11 o’clock at night, because he is not heard from, is preposterous. If death has overtaken him, it must be proved, not conjectured. “Where a fact is, in its nature, continuous, after its existence has once been .proved, a presumption arises as to its continuance to a subse'quent time,” “ So, where the existence of a particular indivi■dual has once been shown, it will, within certain limits, be presumed he still lives.” To prove that a man, who was living a few hours before, is dead, the cause of death must be brought home to him.

It is not enough that he has been exposed to danger. Thus, to prove that a man, well in the morning, is dead at night, it is not enough to shew that he has been in battle, where thousands perished; for, if the presumption prevails as to one, so it will as to every other one, and that would presume the whole army dead, contrary to the known fact; but here, unless Mr. Ball was in the forward cabin, of which there is no proof, there is no likelihood of his having been killed by the explosion; all the evidence concurring that no one was known to have suffered, in the after cabin, from that cause. Let us now consider a few of the rules of circumstantial evidence, and then apply them to ascertained facts. It is a species of evidence only resorted to, “ because it is, in its own nature, capable of producing the highest degree of moral certainty in its application.” Again, an able writer thus expresses it; “the force and tendency of circumstantial evidence, to produce conviction and belief depend upon a consideration of the coincidence of circumstances with the fact inferred, that is, with the hypothesis, and the adequacy of such coincidences to exclude every other hypothe-thesis.” Here is the true clue to circumstantial evidence. The facts proved, must tend to one, only, conclusion; otherwise, it amounts only to “it might be so;” not “it is;” or, to use a veiy pithy expression, “the truth of the proposition is attained by negativing and excluding the truth of any other hypothesis.” Apply these rules to the admitted facts. The whole argument in favor of the survivorship, is this: “Mrs. Ball was heard to call, in a language and tone of deep distress, on her husband. He was a humane and brave man, and would, if living, naturally have responded to her call; but ho one of the few, who have survived, saw him, or heard him-, therefore, he was dead at the time.” This is all, absolutely all, yet the fact that none of the few survivors saw him, or heard him, does not prove that he was not there, neither does the fact, if proved, that he was not with his wife, prove that he was dead. He might have been seeking some means to save her: he might have been looking for his adopted child, as suggested by my colleague, Mr. Memminger. But, in those few moments of terror and anxiety, when each was in dreadful ■extremity, looking for his own safety, it is not strange that he was not noticed. None of the witnesses had any interest in his fate, sufficient to direct their attention. It was dark: the mantle of midnight enveloped them : the lights were generally extinguished: the passengers, with their outer garments off, their heads bound in night handkerchiefs, would not be recognized with quickness and facility.

It is quite likely, too, that Mr. Ball was necessarily absent in looking for the means of escape, and actually returned to his wife, and found her so nervous and excited, as not to cooperate with him. Dr. Whitridge, many years her attending physician,- states that she was easily excited, and liable to hysteria: her nurse and adopted child were not seen, yet they were safe after the explosion, they were not dead. The mere fact, then, that Mrs. Ball continued to call on her husband, which she would naturally have done, to save her, and that, of ¡the lew who survived, none remember to have seen him near her, raises not even a probability that he was dead. His duty led him away from her. Had he lingered by her side, or attempted to soothe her anguish, he would have neglected his higher duty to her and their adopted child, in providing the means of escape; and this leads us to the solitary fact which is in, any way, connected with Mr. Ball after the explosion ; and it is one of those small incidents that so often point' to the very troth. The polar star is among the smallest in the firmament, yet, still it forms the unerring guide of the wanderer on the pathless ocean. It was proved that, very shortly after the explosion, when one of the quarter boats was just lowered, a man came to the side of the vessel, and threw a coat in, saying, “hold on that boat an instant;” the request was not heeded — the boat pushed off to a respectable distance: but this coat was afterwards examined, when the boat reached the beach, and it proved to be a large sized coat, dark collar, and in the pocket, a collar marked “H. S. Ball.” If this was Mr. Ball’s coat, and he threw it into the boat, there is an end to the question. He is proved to have survived the explosion, and Mrs. Ball was exposed to the second cause of death, and there is no pretence for survivorship — and why was it not Mr. Ball’s 1 Why, say the complainants, because somebody might have taken Mr. Ball’s coat by mistake, and thrown it into the boat. It was not Mr. Ball, because it -was possible that another man had his coat. That the coat was his, is all but certain ; it is not, even by the guessing reasoning of the complainants, pretended that Mr. Ball put his collar into another man’s coat, too, by mistake. If it was his coat, he put it in the boat. It is the natural conclusion that a man would take his own coat, because he knew where he put it. It is usual for men to take their own. It is a mistake to suppose otherwise. It is unusual for persons to take what does not belong to them. Then, the act shows a cool, firm man; he was prompt to prepare for escape, but he was a married man, too, else he would have jumped in after his coat; he, evidently, was providing for others, when he said, “ hold on that boat.” All these coincidences point to Mr. Ball, as the man, and not one is inconsistent with it: it is the natural conclusion. Then, shall the mere fact, that all the witnesses are dead, who saw him; that the few survivors did not see him, outweigh the presumption1 that a living man continues to live, until a cause of death ist brought home to him? Also, the facts, that not one was known to be killed in the after cabin, and that his coat was put. into a boat, while he returned to bring his wife, and others under his care ? I, thus imperfectly, I am aware, present to the court, the case of the executors of Mr: Ball; and conclude, that there is no legal proof that Mr. Ball was dead, at the time the witnesses heard the cries oí his wife. That no human testimony can fix the time of his death, while that of his wife, isr rendered almost certain. And thus, so far from the complainants’ having established their survivorship, the weight of evidence proves that the husband survived. It is enough for us,' that the fact is left unsettled. The burden of proof was upon the complainants; and they have failed to establish their position.

An attempt was made to set up an arbitrary rule, “ that the last heard from is deemed to be the survivor,” but nothing can be . more unauthorized. The law no where recognizes any arbitrary rule of the kind, for it depends altogether upon the accidental circumstances — -what witnesses survive to tell the tale? Two men are in battle, both perish, and the time when each or both died is not known, would the mere fact, that one was seen after the first volley, prove that he was the survivor? The error lies in inverting the proposition to prove a survi-vorship. The time of the death of thefirst party is the point to be fixed, and then the subsequent existence of the second, or survivor. Any other rule is arbitrary; but, however applicable such a rule might be, where parties might be missing for years, it has no application to a case where both died in a common catastrophe, and certainly within half an hour of each other. In this case, the rule prevails; that once alive, life is presumed to continue till death is proven; such, is the settled law. The best modern decisions, concur that the only safe rule, is to decide, in the absence of conclusive testimony,that both perished together.- When Heaven has drawn a curtain around the scene, which human vision cannot penetrate, it is presumption to conjecture; and no good comes of such an effort to vest an estate for a few minutes of terror and dismay, and thus divert it from its legal channel. This is not so desirable as to induce us to strain the rules of evidence, and substitute mere conjecture for ascertained truth; 
      
       Negative testimony, leads to no conclusion.
     