In re Ackerman

2 Redf. 521 | N.Y. Sur. Ct. | 1877

The Surrogate.

The only question to be considered is, whether the proof recited raises a presumption of the death of said Jacob Ackerman-, at the time when it is found by the referee to have occurred.

In Oppenheim v. Wolf (3 Sanf.. Ch. 571) it appeared that Wolf departed from New York for Liverpool, in the steamship President, on the 11th day of March, 1841. The vessel was never afterwards heard from. Wolf’s brother, as his general attorney in fact, delivered certain securities belonging to him to the plaintiff, against advances made by the plaintiff to take up certain notes, and.in May, 1841, transferred additional securities for the same purpose; and in August, in the same year, on proof of the facts relative to Wolfs supposed death, letters of administration were granted to the Public Administrator on his estate. In discussing the question as to the death of Wolf, the Vice Chancellor said: “The usual time for steam passages across the Atlantic, from New York, has been 14 or 15 days; the longest passages have not exceeded 23 or 24 days. At page 576, he says, referring to the steamer, “ the fact that she had resources of sails and steam, thus doubling her chance of making some port in case of disaster; and the impenetrable cloud that has always hung over her end, lead the mind irresistibly to the conclusion that she must have gone to the bottom before she had been six weeks out of Hew York; and the strong probability is, that she was lost a few days after her departure.”

In Sheldon v. Ferris (45 Barb., 124) one Engel disappeared about the year 185G, and was not heard from at the time of the trial of the case, and the question arose as to his death, and the time of his death, and Mr. Justice Inge ah am at page 128 says: “It was said, that there was no proof of Engel’s death; it is true there is no direct proof, but his absence for 8 years without being seen, or heard of, warrants the presumption of his death, and when to this is added, the proof of his frequent declaration of intent to commit suicide, this presumption is strengthened, and will warrant the conclusion, that his death occurred about the time of his disappearance. ”

In Merritt v. Thompson (1 Milton, 550), it was held that where an ordinary voyage is four months, and seventeen months elapsed without any tidings of the vessel, the master and crew will be presumed to be dead.

In Eagle v. Emmet (4 Bradf. 117), the general rule is stated to be that a party absent seven years without intelligence of his living, is presumed to be dead, and that the length of time may be abridged, and the presumption applied earlier, by proof of sufficient circumstances tending to show death, within a certain period.

In O’ Gara v. Eisenlohr (38 N. Y., 296), it is stated that it is a general rule that the law presumes the continuance of life, and will not presume death until an absence of seven years, without being heard from.

The proof in this case raises a reasonable presumption that Ackerman died within three months of his departure from Hohokus. The testimony of the physician renders it improbable that he could live long after that time His entire dependence upon the income of the estate in question, his regular and frequent calls for the same before his departure, and his failure to call thereafter, all in my opinion combine to justify the conclusion reached by the referee.

Order accordingly.