delivered the opinion of the court.
Plаintiff in his petition alleged that he was administrator of Ilenry C. Morris, deceased, and that defendant,by its policy dated June 8th, 1860, in consideration of— dollars, paid and secured to be paid by deceased, assured his life in the sum of $5000 for the term of hit natural life, and promised and agreed well and truly to pay, or cause to be paid, said sum of money, to the heirs, executors, administrators and assigns of the said Morris, withi n sixty days after due notice and satisfactory proof of his death; that said Morris died suddenly in New York city on or about March 1st, 1861, and has never been heard of since. There was a further averment, that after due inquiry and searсh, the heirs and relatives of Morris had been unable to ascertain the particulars of his death, and unable to give to the company such proof and notice of his death as was mentioned and specified in the conditions or directions indorsed on the policy; that the heirs and legal represеntatives of the deceased Morris did, at divers times, give due notice and furnish proof of his death ; and that more than seven years had elapsed since any of the family, or friends, or relatives, or acquaintances of Morris had heard from or of him.
The answer denied all the allegations of the petition, except that a policy was made insuring the life of Morris for $5000. It set up as new matter, that the policy contained the following provisión: “that in case said Henry C. Morris should not pay the premiums hereinbefore specified, on or before the days specified and appointed for the payment of the same, or shall fail to pay the interest on said premium note when due, then said policy shall be void.” The answer then alleged that the policy was issued in consideration of
The reply averred that Morris died before June 8th, 1861, and that before the premium of that date became due, he had departed this life.
A question was made here whether the notice of death was given in time, or, in fact, whether there was any sufficient notice given at all. But from the view that we havе taken of the case, that question becomes unimportant and immaterial. The main question is, when did Henry O. Morris die % Unless his death occurred prior to June 8th, 1861, there can be no recovery, as the premium due at that date was not paid, and if he was then living, its non-payment worked a forfeiture of the policy. Bеfore considering the instructions given by the court, it will be necessary to advert briefly to the evidence.
It appears that Henry C. Morris was a single man; that for many years previous to his alleged death, he had been in the habit of spending his time in the south, engaged in mining and speculations ; that lie left the south and was for some time visiting liis friends and relations in Quincy, Illinois, and from there went east, and during the winter of 1860-61, he boarded with a Dr. Scott, in New York City. At Albany, he became interested in a patent stove, which he designed introducing in the south, and had a pattern made and shipped there for him. The rebellion at that time was about to commencе, and he was open and outspoken in his sympathies with the southern people, and declared his purpose' to go south and take up arms in its defense. His health seems to have not been very good, though the witnesses state that he was able to attend to business. About the 1st of March, 1861. he left his room at Dr. Scott’s with the intention of going .to Brooklyn and did not return. His clothes and valise were left in his room, but they were of little value.
His friends and relatives testify that they never saw or heard of him any more. Dr. Scott testifies that he received a
The foregoing is the substance of the testimony. For the plaintiff, the court instructed the jury that, “ if prior to the commencement of this suit Henry. O. Morris had disappeared and had not been heard from by his friends and acquaintances for a term of seven years, then the law presumes that he is dead, and the jury will determine from all the evidence in the case at what time he died; and if the jury believe from the evidence that he died before June 8th, 1861, and that defendant was notified of his death, and furnished with such proof thereof, as the circumstances of the case would permit, and, also, that plaintiff has been appointed administrator of said Henry C. Morris’ еstate, then the plaintiff is entitled to recover in this action.”
At the instance of the defendant, the court gave an instruction that “ there is no evidence before the jury that,the premium due June 8th,'1861, has ever been paid, therefore, if Henry C. Morris was living at that date, the policy became forfeited, and the plaintiff cannot recover in this case.” And there was a refusal to declare that, “ the plaintiff having not produced any evidence that Henry C. Morris died prior to June 8th, 1861, is not entitled to recover.”
There was a verdict and judgment for plaintiff, and the defendant has prosecuted an appeal.
In relаtion to the presumption of death arising from mere absence, the rule at common law is well established.
Where a party has been absent seven years, without having been heard of, the only presumption then arising is, that he is dead; there is none. as to the time of his death, as to whether he died at the beginning оr at the end of any particular period during those seven years. If it be important
In Burr vs. Sim, (
In White vs. Mann, (26 Me., 361) the court say: “When a person lеaves his usual place of residence with an intention of returning to it, and continues to be absent for seven years, without being heard of, he is presumed to be dead. The time when such presumption will arise, may be greatly abridged by proof that the person has encountered such perils as might be reasonаbly expected to destroy life, and has been so situated that, according to the ordinary course of human events, he must have been heard of if he had survived.”
In the King’s Bench an action was on a policy of insurance on the life of L. Macleane, Esq., from the 30th of January, 1772, to the 30th of Jan'uary, 1778. It appeared in evidence that about the 28th of November. 1777, Macleane sailed from the Cape of Good Hope, in the Swallow, sloop of war, which ship, not being afterwards heard of, was supposed to have been lost in a storm off the Western Islands. The
Whoever finds it important to establish death at any particular period, must do so by some kind of evidencе. The evidence need not»be direct or positive; it may depend upon circumstances, but it should be of such a.character as to make it more probable that the person died at a particular time, than that he survived. When a person is known to be-alive at a certain time, there is a рresumption -of the continuance of his life, and, to overcome this presumption, evidence must be adduced tending to show at what particular period he died.
Mere absence, unattended with other circumstances, will not be sufficient. In Eagle’s case, (
He gave no intimation to any one of .an intention tо absent, himself, and the latest declaration of his intentions was to the effect that he expected to leave Chicago, the day of his disappearance, to join his wife at Dubuque.
He owed no debts amounting to any considerable sum and had made payments of small ones about the day of his disappearance. His valise, containing clothing and other articles commonly carried by travelers, was found at his hotel, and his hotel bill was unpaid. In the circuit court, the jury were instructed, that to raise a presumption of death from absence within a time less than seven years, it must be shown that the person allеged to be dead was subjected to some specific
In the Supreme Court this instruction was declared to be wrong, and it was held, that evidence of character, habits, domestic relations, and the like, making the abandonment оf home and family improbable, and showing a want of all those motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which the death of one absent and unheard from, may be inferred, without regard to the duration of such absence. (Tisdаle vs. Conn. Mut. Life Ins. Co.,
With the rule laid down in the above case, we concur. The circumstances and situation of the party, his entire surroundings, his fixed home, his expressed intention of immediately departing for it, with his almost simultaneous disappearance, and the exhaustive search that "was at once made, failing еntirely to clear up or reveal anything in relation to the mystery of his disappearance, wove a net of circumstances from which it might well be inferred that his absence was solely attributable to his death. It may well be conceded that where a person is studious in his habits, attentive to his business, has a fixed and permanent l’esidence, and is surrounded by those influences which are calculated to endear him to his home, suddenly and unaccountably disappears, a presumption may arise which would warrant a jury in finding that he was dead.
But will the circumstances of this case warrant the admission of any such doctrine ? Morris had no family, he had no fixed or permanent place of abode. Bor years he had been residing in the south, being in different states, and engaged in different places. He told his relatives that he was going back to the south. He made arrangements to introduce a patent there. He was warm in his sympathies for the southern cause, and expressed his determination to take up arms in its defense. No intention was ever shown of staying in New York, or with his friends in the north. According to his declared design, he was going south, as thousands of others did in those times.
Wherefore, the judgment should be reversed and the cause remanded. Judges Napton and Sherwood concur. Judges Vories and Hough absent.