of warrants a presumption of his death, and if to this is added the proof of his frequent declarations of an intent to commit suicide, the presumption is strengthened, and warrants the conclusion that his death occurred about the time of his disappearance: Sheldon v. Ferris, 45 Barb. 124. If one is absent twenty years from the place where he and all of his relatives resided, and he has never been heard from, though inquiry has been made for him, he is presumed to be dead so that letters of administration on his estate are authorized: Ferrill v. Grigsby (Tenn.), 51 S. W. 114. If a husband has been absent from his home and unheard of by his wife for seventeen years, he is presumed to be dead: Garwood v. Hastings, 38 Cal. 216; Osborn v. Allen, 26 N. J. L. 388. And if he has been absent under like circumstances for ten years, his wife may contract a valid marriage with another, as he is presumed to be dead: Estate of Harrington, 140 Cal. 244, 98 Am. St. Rep. 51, 73 Pac. 1000. The continued absence, unheard from, and nonappearance of depositors at a bank for twenty years, and the nonclaimer by them of their deposits, are circumstances sufficient to raise a presumption of their death: Bank of Louisville v. Board of Trustees, 83 Ky. 219. If an unmarried man has been absent and not heard from for more than twenty-five years, it may be presumed that he died seven years from his disappearance and without issue: Chapman v. Kimball, 83 Me. 389, 22 Atl, 254; Shown v. McMaekin, 9 Lea, 601, 42 Am. Rep. 680. Such an unexplained absence of forty-three years rebuts the presumption of a continuance of life and creates a presumption that the man is dead and that he left no issue him surviving: McNulty v. Mitchell, 41 Misc. Rep. 293, 84 N. Y. Supp. 89. In Doe ex den. Hurdle v. Stockley, 6 Houst. 447, it was, however, held that if a married man and his family left the state and were not again heard of for fifty years by any of their relatives living at the place from which they absented themselves, the jury cannot be instructed to presume that they are all dead without issue. It has also been held that under such circumstances it is proper to refuse to distribute the share of an estate bequeathed to an unmarried man who has been absent over fifty years without being heard from, on the presumption that he died without issue, in the absence of satisfactory proof of diligent inquiry at the proper place to ascertain whether he is dead or alive: Dunn v. Travis, 56 App. Div. 317, 67 N. Y. Supp. 743; affirmed Hornberger v. Miller, 163 N. Y. 578, 57 N. E. 1112. The better rule is in accord with this holding, namely, that some inquiry must be made at the absentee's last known place of residence, in order to establish the presumption of his death, no matter how long his absence may have continued: Dworsky v. Arndtstein, 29 App. Div. 274, 51 N. Y. Supp. 597. But it has also been held that the lapse of twenty-four years, though without proof of inquiry or other circumstances, is sufficient to warrant the presumption of the death of a person of whom nothing has been heard for that length of time: Innis v. Campbell, 1 Rawle, 372.

The presumption of death from long-continued absence is not an imperative rule of law where the circumstances of the disappearance permit of a different inference: Winter v. Supreme Lodge Knights of Pythias, 96 Mo. App. 1, 69 S. W. 662. One's absence from a particular place raises no presumption of his death, no matter how long such absence is continued if there is no evidence that he ever established his residence there, but his absence from his established home or residence must be proved, and that no intelligence has been received of him for seven years or more: Stinchfield v. Emerson, 52 Me. 465, 83 Am. Dec. 524.

V. Sailors and Soldiers.

If a sailor departs on a voyage and is not heard from thereafter his death is presumed at the end of seven years: Godfrey v. Schmidt, Cheves Eq. 57. A seafaring man who goes to sea and is not heard from within nine years is presumed to be dead: Burleigh v. Mullen, 95 Me. 423, 50 Atl. 47. Or if a sailor goes to sea and is not heard from for fifteen years, the presumption arises that he is dead: Larned v. Corley, 43 Miss. 688. The same presumption arises if a sailor is absent unheard from for twenty-three years: Sterrett v. Samuel, 108 La. Ann. 346, 32 South. 428; Holmes v. Johnson, 42 Pa. St. 159. But it is not necessary that seven years or any specific period should elapse to lay the foundation for the presumption of the death of a sailor from his absence, and the presumption may be drawn whenever the facts of the case will warrant it. Thus, if the person "whose death is in question went to sea, and nothing has been heard from the vessel in which he left or of those who went in her, the presumption, after a sufficient length of time has ensued, will be that the vessel was lost, and that all on board perished. The length of time that must elapse to create such presumption depends upon the nature of the voyage and of the navigation, and a court or a jury will be guided by the circumstances that are laid before them, in determining whether such presumption is warrantable or not': Merritt v. Thompson, 1 Hilt. 550. In such cases the presumption of death may arise in a much shorter time than seven years. Thus, if it takes a vessel four months ordinarily to make the voyage, and she is not heard from in seventeen months after her departure, it may be presumed that she is lost and that all on board of her have perished: Merritt v. Thompson, 1 Hilt. 550.

A soldier who, after joining the army goes to war, and never returns nor is heard of afterward, may be presumed dead after twenty-five years: Jamison v. Smith, 35 La. Ann. 609.

VI. Extreme Old Age.

The death of a person may be presumed after a long lapse of time, as where, if alive, he would have been one hundred and fifty years old. Persons, however, have been known to live ninety and one hundred years, and the court cannot say that others have died at Am. St. Rep., Vol 104-14

an earlier age without some evidence on the subject: Hammond v. Inloes, 4 Md. 141.

The civil law presumes a person to be living at the age of one hundred years, and the common law does not stop much short of this: Roe ex dem. Watson v. Tindal, 24 Ga. 494. Thus under the civil law the death of an absentee who is less than one hundred years old is never presumed, but must be clearly shown as a fact: Hayes v. Berwick, 2 Mart. 138, 5 Am. Dec. 727; Miller v. McElwee, 12 La. Ann. 476; Martinez v. Succession of Vives, 32 La. Ann. 305; Willett v. Andrews, 51 La. Ann. 486, 25 South. 391. The death of a person before the bringing of the suit may be presumed when it would be contrary to the ordinary course of nature, through lapse of time, that he should be living at that time, although it is not necessary to indulge any presumption of the period when death occurred, or up to which time life endured: Sprigg v. Moale, 28 Md. 497, 92 Am. Dec. 698. Thus, a grantor in a deed will be presumed to be dead eighty years after its acknowledgment by him: Young v. Shulenberg, 165 N. Y. 385, 80 Am. St. Rep. 730, 59 N. E. 135. The maker of a power of attorney, though aged, is presumed to have been alive five years later, at the time of the execution of a deed in his name by his attorney in fact appointed under such: Chicago etc. R. R. Co. v. Keegan, 185 Ill. 70, 56 N. E. 1088.

VII. Presumption at Time Judgment Rendered.

In the case of a judgment rendered by a court of a justice of the peace more than twenty-five years in the past, in the absence of proof that the defendant was dead at the time that the suit was brought and prosecuted to judgment, the presumption is that the defendant was living at that time, and not that he was dead: Willis v. Ruddock Cypress Co., 108 La. 255, 32 South. 386.

VIII. Survivorship.

a. Generally.-At common law there is no presumption of survivorship in case of persons who perish by a common disaster, and in the absence of evidence from which survivorship can be determined, it will be presumed for the purpose of settling rights to property, that all persons, of whatever age or sex, perishing in a common disaster, die at the same time, as the common law does not, under any circumstances, even in the case where two or more perish by the same calamity, indulge in any presumptions of survivorship resting upon considerations of age or sex: Balder v. Middeke, 92 Ill. App. 227; Middeke v. Balder, 198 Ill. 590, 92 Am. St. Rep. 284, 64 N. E. 1002, 59 L. R. A. 653; Russell v. Hallett, 23 Kan. 276; Johnson v. Merithew, 80 Me. 111, 6 Am. St. Rep. 162, 13 Atl. 132; Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424; Stinde v. Goodrich, 3 Redf. Surr. 87; Willbor's Petition, 20 R. I. 126, 78 Am. St. Rep. 842, 37 Atl. 634, 51 L. R. A. 863; Cook v. Caswell, 81 Tex. 678, 17 S. W. 385. Where two

persons perish by the same disaster, there is no presumption of law as to survivorship, in the absence of a rule prescribed by positive statutory enactment: Robinson v. Gallier, 2 Woods, 178, Fed. Cas. No. 11,951. In a question of survivorship arising out of a common calamity, legal presumption founded upon the circumstances of age, size or physical strength do not generally obtain in the United States. That is a doctrine of the civil law which has not been adopted, and has been given no sanction in our system of jurisprudence: Smith v. Croom, 7 Fla. 81; Coye v. Leach, 8 Met. 371, 41 Am. Dec. 518. The presumptions of law as to survivorship as between persons perishing in the same disaster which have become the rule of the civil law, have been adopted by the Civil Code of Louisiana and by the Code of Civil Procedure of California, section 1963, subdivision 40; but such presumptions apply only in the absence of circumstances of the fact, and when persons are respectively entitled to inherit from one another: Robinson v. Gallier, 2 Woods, 178, Fed. Cas. No. 11,951. And, generally speaking, where several lives are lost in the same disaster, there is no presumption from age or sex that either survived the other, and the fact of survivorship must be proved by the person asserting it: Johnson v. Merithew, 80 Me. 111, 6 Am. St. Rep. 162, 13 Atl. 132; Supreme Council of Royal Arcanium v. Kacer, 96 Mo. App. 93, 69 S. W. 671, 169 Mo. 301, 92 Am. St. Rep. 301, 69 S. W. 370, 59 L. R. A. 653. He who claims a right by virtue of survivorship must prove the fact of the survival of him through whom he claims, and failing in this, the property or fund remains vested as it was before the calamity: Middeke v. Balder, 198 Ill. 590, 98 Am. St. Rep. 284, 64 N. E. 1002, 59 L. R. A. 653; United States Casualty Co. v. Kacer, 169 Mo. 301, 92 Am. St. Rep. 641, 69 S. W. 370, 58 L. R. A. 436. Disparity of age may be considered in determining the question of survivorship as between an adult and an infant, or a person well stricken in years: Cuye v. Leach, 8 Met. 371, 41 Am. Dec. 518. And if several persons grown and infant perish in a fire, the probable origin thereof and the location of the bodies when found may be considered as an aid in determining the question of survivorship: Will of Ehle, 73 Wis. 445, 41 N. W. 627. And the fact of such survivorship does not require any higher degree of proof than any other fact in a civil case: Robinson v. Gallier, 2 Woods, 178 Fed. Cas. No. 11,951.

b. Husband and Wife.-It is a general rule that if husband and wife are shown to have perished in the same casualty, nothing appearing to the contrary, there is no presumption of survivorship, but it is presumed that both died at the same moment: Kansas Pacific Ry. Co. v. Miller, 2 Colo. 445; Balder v. Middeke, 92 Ill. App. 227; Middeke v. Balder, 198 Ill. 590, 92 Am. St. Rep. 284, 64 N. E. 1002, 59 L. R. A. 653; Fuller v. Linzee, 135 Mass. 468. If husband and wife die together on the same night from an escape of gas in their room there is, in the absence of evidence upon the point, no presumption

that one survived the other: Southwell v. Gray, 35 Misc. Rep. 740, 72 N. Y. Supp. 342. And in such case where a benefit certificate of insurance provides that it shall be paid to the heirs of the deceased member, in case the named beneficiary dies before the insured, and the wife of the member is named as beneficiary, the benefits must go to the heirs of the deceased member, and not to the heirs of his wife: Middeke v. Balder, 198 Ill. 590, 92 Am. St. Rep. 284, 64 N. E. 1002, 59 L. R. A. 653; Southwell v. Gray, 35 Misc. Rep. 740, 72 N. Y. Supp. 342. A different conclusion was reached in Cournan v. Rogers, 73 Md. 403, 21 Atl. 64, 10 L. R. A. 550, where it was held that there was no presumption of survivorship, but that in the absence of competent and sufficient evidence to show that the wife, the nominated beneficiary, died before her husband, her legal representatives were entitled to the fund.

If both husband and wife perish in the same calamity, no presump. tion of survivorship of the wife arises from the fact that an order of the probate court granting letters of administration upon her estate recites that she was the surviving wife of her husband, and in a proceeding by her administrator to set aside the probate of her husband's will, it is error to refuse evidence aliunde upon the question of survivorship: Sanders v. Simcich, 65 Cal. 50, 2 Pac. 741; but under subdivision 40 of section 1963 of the Civil Code of California, a presumption of survivorship arises where two persons perish in the same calamity from the probabilities resulting from strength, age and sex of the victims, and it results that if husband and wife perish in the same calamity, and there is nothing to show which expired first, and both are between the ages of fifteen and sixty, the husband is presumed to have been the survivor: Hollister v. Cordero, 76 Cal. 649, 18 Pac. 855. It has also been held by an inferior court in New York that if husband and wife perish together at sea, and there is no evidence to authorize a different conclusion, it will be presumed that the husband survived the wife: Moehring v. Mitchell, 1 Barb. Ch. 264.

C. Parent and Child, or Other Relatives.-If a mother and her infant son perish in a common catastrophy, and there is no positive evidence as to which perished first, there is no presumption of survivorship, but it will be presumed that both perished at the same time: Stinde v. Goodrich, 3 Redf. Surr. 87. The same presumption prevails as to mother and child, regardless of age or the sex of the child: Moehring v. Mitchell, 1 Barb. Ch. 264; Russell v. Hallett, 23 Kan. 276; Cook v. Caswell, 81 Tex. 678, 17 S. W. 385. In case of a mother, aged sixty-nine years, her son in law, aged forty-five, and his two children, aged respectively ten and seven years of age, who all perished in the same shipwreck, there is no presumption of survivorship: Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424; and if three sisters perish in the same calamity, no fact or circumstance appearing from which it may be inferred that either survived the other, the rights of succession to their estate are to be determined as if death