Groff v. Groff

36 App. D.C. 560 | D.C. Cir. | 1911

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The principal assignment of error, and the one upon which this appeal can be decided, is to the effect that the court erred in instructing the jury to find a- verdict answering the issue in the negative. It appears from the evidence that Adam H. Groff disappeared from the District, of Columbia about the 25th of April, 1906; that his wife received a letter from him the day following, from Richmond,' Virginia, the point for which he had started on leaving Washington the day previous. He had intended to be gone about three days. It appears from the testimony of the wife that this letter was the last she ever heard of him. Effort was made by her to locate him through the police department at Richmond and other points, but without success. She enlisted the support of the police department of Washington, and the fact of his disappearance was advertised through the public press; but it brought no clew disclosing his whereabouts.

No reason is given in the record why he should have voluntarily abandoned his home and family, and thus disappeared. There is testimony, apparently to the contrary, to the effect that a few days before his departure he made the statement that “if anything happens to pa (meaning the testator), that his will is not evenly divided, I will fight it to the very last, if I lose every penny.” It appears that his father was in failing health at this time, and possessed a large estate, valued at about $103,000, with liabilities against it estimated at about $59,000. It also appears that just before leaving home, Adam H. Groof, who was a contractor and builder, had submitted an estimate for the construction of a building of considerable proportions in this District; that he seemed anxious to secure the contract and do the work; that when he left he owned two pieces of real estate, which were mortgaged; that his life was insured for the benefit of his wife; and that, after his departure, premiums upon the policy were paid by the testator up to the time of his death, and since his death have been paid by the guardian of the caveators. This, in substance, constitutes the evidence submitted on behalf of the caveators.

The caveatees introduced a witness who had known Adam H. Groff for many years prior to his disappearance, who testified that he had seen Groff and talked with him in New York city in the latter part of the summer or early fall of 1906; that he had known Groff for fifteen years; that his health seemed to be normal; that he was dressed about as usual, and that he appeared to be in his usual condition. Further evidence was offered to show that in 1909, Adam H. Groff communicated over the telephone with an employee of George E. Walker, lumber merchant, of this city, with regard to the payment of a bill due the company from him. This testimony was supported by that of another employee of Walker, who claims that he also talked with Groff over the phone at this time. The testimony, however, as to these conversations, was somewhat indefinite, as the party telephoning did not give his name, but the witnesses thought that they positively identified his voice, and seem to be definite in their belief that it was Adam H. Groff with whom they talked. This in substance constituted all the evidence that was introduced, and upon which the court directed a verdict for the caveatees.

The sole question presented is whether or not this evidence is sufficient to overcome the presumption that Adam H. Groff was still alive at the date of his father’s death, March 8, 1910. Séction 252 of the Code [31 Stat. at L. 1230, chap. 854] provides : “If any person shall leave his domicil without any known intention of changing the same, and shall not return or be heard from for seven years from the time of his so leaving, he shall be presumed to be dead, in any case wherein his death shall come in question, unless proof be made that he was alive within that time.” This is but a declaration of the common-law rule of evidence in regard to presumptive death. Seven years had not elapsed at the time of the death of the testator since the disappearance of Adam H. Groff. The burden of proof therefore rested upon the caveators to establish his death, and overcome the presumption of the statute. It is somewhat difficult, under the decisions of the courts, to determine just what state of facts is sufficient to overcome this presumption. The rule, however, seems to be that, in order to overcome the presumption, it must appear that the absent person, during the period after his disappearance, encountered some specific peril,, or was subject to some immediate danger, inconsistent with the continuation of life, or that there were facts and circumstances surrounding his disappearance and absence which would lead to a conviction that death had occurred within a shorter period than that prescribed by the statute.

In the case of Davie v. Briggs, 97 U. S. 628, 24 L. ed. 3086, the court said: “If it appears in evidence that the absent person, within seven years, encountered some specific peril, or within that .period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years.” And in the case of Fidelity Mut. Life Asso. v. Mettler, 185 U. S. 308, 46 L. ed. 922, 22 Sup. Ct. Rep. 662 (the case chiefly relied upon hy counsel for caveators), the court held that the inference of death may arise from disappearance under circumstances inconsistent with a continuation of life. In that ease the circumstances as detailed by the witnesses were such as to scarcely admit of a reasonable hypothesis other than the inference of death. None of these conditions are present in this case. We fail to find from this record any circumstance that is sufficient to overcome the presumption of the statute that, at the time of the death of the testator, Adam II. Groff was still alive. In the absence of such evidence, it was proper for the court to instruct the jury to return a verdict for the caveatees, and not permit the jury to speculate upou theories not warranted by the evidence.

The decree is affirmed, with costs, and it is so ordered.

Affirmed.