Francis v. Francis

180 Pa. 644 | Pa. | 1897

Opinion by

Mr. Justice Williams,

This was an issue devisavit vel non. The contestants denied the validity of the will, alleging that Rachel Francis, the testator, was a single woman when it was made in 1884, and that it was revoked by her subsequent marriage in 1886. She had been married to Thomas Watkins in 1870, who prior to 1876 had left his home in Scranton and gone with a colony to settle in Patagonia. The colony was established. Watkins as a member of it was heard from in 1876. He was at that time residing with the other colonists and engaged in labor with them. Since that time he has not been heard from, and the contestants invoke the presumption of his death; and it is upon this presumption that the contestants rely to establish the fact that the testatrix was single at the date of her will in 1884. Do the foregoing facts' raise the presumption of the death of Watkins ? A presumption of death is raised by. the absence of a person from his domicile unheard of for seven years. Absence in this connection means that a person is not at the place of his domicile, and that his actual residence is unknown. It is for tliis reason that his existence is doubtful, and that after seven years of such absence his death is presumed. But removal alone is not enough. The further fact that he has disappeared from his domicile and from the knowledge of those with whom he would naturally communicate, so that his whereabouts have been unknown for seven years or upwards, is necessary in order to raise the presumption. But where a person removes from his domicile in this state to establish a home for himself in another state or country, at a place well known, this is a change of residence, and absence from the last domicile is that upon which the presumption must be built. If alive when last heard from at his new domicile the presumption is that life continues : 1 Am. & Eng. Ency. of Law, p. 37. See also Whiteside’s App., 23 Pa. 114; Holmes v. Johnson, 42 Pa. 159. The learned judge of the court below instructed the jury correctly upon this subject. The jury found in favor of the proponent upon both the questions submitted to them. This was done under proper instructions, and we see no reason whatever for disturbing the verdict. The assignments of error are not sustained.

The judgment is affirmed.