193 Misc. 226 | N.Y. Sup. Ct. | 1948
The general rule is that seven years’ absence creates a presumption that death took place at the end of that period (Connor v. New York Life Ins. Co., 179 App. Div. 596, 598). Here, slightly less than five years have elapsed and the only evidence before the court of the death of John Hamilton Cuthell Campbell is the presumptive finding by the War Department on January 17,1946. Although it sets a presumptive date (January 17, 1946) for the purpose of termination of pay, etc., it does not, under the Missing Persons Act (U. S. Code, tit. 50, Appendix, § 1005) establish an actual or probable date of death. However, it necessarily confines the period of speculation, in the absence of better evidence, to a time ending with January 17, 1946, for a finding made on that date could not relate to the future and its probative force under section 341-a of the Civil Practice Act, could not support a finding of a presumptive or actual date of death subsequent to January 17, 1946.
Here, John Hamilton Cuthell Campbell was last seen on January 28, 1944, when the bomber, of which he was a crew member, was damaged by enemy antiaircraft fire in the vicinity of Taroa Island in the Marshall Group in the Pacific Ocean and slowly lost altitude and landed in the sea about three quarters of a mile east of Taroa. Neither the War Department nor apparently any one else has since ever received any information about the fate of any of the crew of this bomber. The letter from the Acting Adjutant General of the Army to the widow of John Hamilton Cuthell Campbell which accompanied the certified copy of the presumptive finding of death is not’ specific about whether the bomber remained afloat or sank immediately. Nor is there any indication that any one saw any of the crew members leave the bomber either before or after it reached the sea. The bomber was brought down by enemy fire within easy range of all kinds of enemy firearms. It was brought down in enemy territory. In the circumstances the only evidence of death is the occurrence or hazard of the bomber’s drop to the sea with a consequent exposure of crew members who survived that to the fire and whim of the enemy, the action of the elements and the possible contact with carnivorous marine life or native uncivilized or semicivilized Polynesians. This seems to be near enough to the “ catastrophe, occurrence or hazard ” described in Connor v. New York Life Ins. Co. (supra), and it is the only evidence of any kind upon which now an actual date of death may be fixed for there is nothing else in the record and the presumptive date set by the War Department was obviously chosen more with an eye upon the convenience of the widow at termination of pay, etc., than upon any actual evidence of death on the date selected.-
Accordingly, the court will find that John Hamilton Cuthell Campbell died January 28, 1944. It will thus follow that John
Objection No. 1 of the respondent, Archibald B. Campbell, about the commissions to the trustee will be sustained.
Objection No. 2 of the respondent, Archibald B. Campbell, will be overruled, and the payment of the attorneys’ fees approved.
Settle decree on notice at chambers, Poughkeepsie.