136 N.Y.S. 944 | N.Y. Sur. Ct. | 1912
The matter comes before the surrogate on a petition of Laura Blakeny (who is the executrix of her mother, the widow of J. George Laffargue) for a judicial settlement of the accounts of Edward Herrmann, as the executor of the estate of J. George Laffargue, deceased. In the first instance a citation issued out of this court, directed to the executor of J. George Laffargue only. The executor appeared and filed an answer, denying in substance that Mrs. Laffargue survived her husband, J. George Laffargue, as both perished in a common disaster. Mrs. Laffargue left surviving her two daughters of her former marriage. Mr. Laffargue left two sons of his former marriage. Thus the two daughters are now claiming against the two sons distributive rights in the estate of Mr. Laffargue, senior, the father of the sons.
If Mrs. Laffargue did not survive her husband, her executrix has no standing in this proceeding. This being the condition of the proceeding, an order of reference seems to have been thereupon made to take proof and report the evidence with the opinion of the referee thereon, as to whether Mrs. Henrietta Laffargue survived her husband. The referee reported that she did survive, whereupon the surrogate for
The single issue of fact thus presented to the surrogate is, “ Did Mrs. Laff argue survive her husband? ” If not, neither her daughters of her former marriage nor her executrix is entitled to take any part of the estate bequeathed by the will of J. George Laff argue to their mother. On the part of the executrix of Mrs. Laff argue it is alleged that Mrs. Laff argue survived her husband. Such survival is denied, in substance, by or on the part of the sons of Mr. Laffargue’s first marriage. Upon the determination of the issue of survivorship depend the further proceedings in this matter.
It appears from the evidence that on the 18th day of August, 1906, J. George Laff argue and his wife, with two friends, Mr. and Mrs. Lurch, were motoring along a public highway in or near Allaire, in the State of New Jersey. In attempting to cross the tracks of the Pennsylvania Railroad Company at a grade crossing near the station for Allaire, the automobile, containing the four occupants named, was struck by a passenger train, running at a very high rate of speed (sixty to sixty-five miles an hour), by reason of which all the persons named met their death, with the single exception of Mr. Lurch, who was so desperately injured as to be unable to give any evidence in this proceeding concerning the
It is but proper that the surrogate should state at the outset of this opinion the rules which, as he conceives, apply to the evidence taken in this matter and which he attempted to apply in the reception of the voluminous evidence offered as bearing on the question of actual survivorship, for on the integrity of these rules and their correct application the validity of the conclusion may depend.
Had both Mr. and Mrs. Laffargue after the catastrophe been found to be dead beyond all question, and nothing more been given in evidence concerning the time of death, there would by the common law be no presumption of survivorship; nor would there be a presumption of simultaneous death, as the common law, with great reserve, refuses, under such circumstances, to indulge in any presumption whatever on this subject. At common law the question of survivorship in common disasters is regarded as insoluble, or, as it is said, “ as unascertainable,” without some actual evidence bearing on the question of a survivorship de facto. Wing v. Angrave, 8 H. L. Cas. 183; Matter of Alton (1892), Prob. Div. 142; Matter of Johnson, 78 L T. Rep. 85; Matter of Benyon (1901), Prob. Div. 141; Matter of Good, 24 L. T. Rep. 439; Taylor Ev., §§ 202, 203; Stinde v. Goodrich, 3 Redf. 87;. Newell v. Nichols, 75 N. Y. 98; St. John v. Andrews Institute, 191 id. 254, 276; Young Women’s Christian Home v. French, 187 U. S. 401.
The refusal of the common law to indulge in all presumptions concerning the exact time of the death of commorientes is sometimes contrasted with the liberality of the civil law on the same subject, and it is stated with some censure implied, that the civil law indulged in over refinement on this matter. This is not altogether accurate. The presump
That the alleged survivorship of Mrs. Laff argue must be proved in this cause, by those alleging it, and claiming through and under Mrs. Laff argue, cannot be questioned. Jones Ev., § 64. This being conceded, if there are any facts concerning the disaster, however minute, which throw light upon the question of survivorship, such facts, subject to the general rules of evidence, seemed to the surrogate to be admissible evidence on the issue now on trial. Newell v. Nichols, 75 N. Y. 78; Underwood v. Wing, 19 Beav. 459; Will of Ehle, 75 Wis. 445. This last rule would seem to admit circumstantial evidence, not only in the absence of direct evidence, but also in aid of direct evidence. Dowling v. Dowling, 10 Ir. L. R. 236. This last point I now emphasize because it bears upon
Certainly where there is any proof, that one of the parties is living when the other party is supposed to be dead, the trier of the fact (jury or surrogate indifferently and as the case may be) may then consider, under common-law rules of evidence, all the circumstances of the parties whose time of death is in controversy, including their respective ages, sex and health. Pell v. Brown, 1 Cheves Eq. (S. C.) 99; Underwood v. Wing, 19 Beav. 459; Broughton v. Randall, Cro. Eliz. 503. Such evidence is received not as the basis of a presumption, but as corroborative or otherwise of actual evidence of survivorship.
It was in view of this distinction, just pointed out, that the surrogate allowed in evidence much circumstantial evidence relevant to the health and the nature of the several wounds of both Mr. and Mrs. Laff argue. Standing alone, such matters would have been irrelevant except to a presumption of survivorship. But, as the testimony developed, they were circumstances which bore upon the direct evidence of an actual survivorship. Thus such circumstances became competent in this cause under the adjudications cited above.
It is necessary to advert to but one more point in the law of evidence governing the investigation. It is claimed on the part of Mr. Laffargue’s own heirs that the law favors the male heirs of Mr. Laff argue. This rule the surrogate conceives to be related to the interpretation of translative documents affecting heirs at law and to have no reference to the weight of evidence on an issue of fact. Here the matter is not one of favorable interpretation of a will, but of the weight
With this pronouncement of the evidentiary rules applicable, or deemed to be applicable, by the surrogate, to the issue of survivorship, we are prepared to consider the great mass of evidence offered by the parties on the hearing. Much of this evidence is at hopeless odds, while some of it is but remotely relevant. It is by reason of this fact extremely difficult for the surrogate to extract the matters which bear most heavily on the issue. It is established that the bodies of Mr. and Mrs. Laff argue and the body of Mr. Lurch were hurled by the tremendous impact of the great train, which struck their automobile, on or near to the station platform, and that the automobile itself was dashed into fragments. By one of those singular variations of force Mr. Lurch was not killed outright, but he was rendered by his shocking injuries oblivious of all the details of the occurrence. After being struck there was a blank in Mr. Lurch’s mind never filled. There appears to have been no station master on duty at the little wayside station when the express sped past, and thus this tragedy was practically unobserved by witnesses, with one exception, Hyers, the locomotive fireman. The bodies of the victims were found, under the circumstances I am about to advert to, ranged on or near to the station platform. On the testimony of their first finder, or finders, as to the condition of the bodies, depends the issue of survivorship, so vigorously contested in this proceeding.
It is conceded by the counsel for Mr. J. George Laffargue’s own proper heirs, that the survivorship of Mrs. Laff argue depends wholly on the testimony of Hyers, the fireman on the train locomotive. The main efforts of such counsel were directed on the trial to the impeachment or contradiction of Mr. Hyers. It was Mr. Hyers who, while on duty on the
Now, who is the witness Hyers ? At the time of the casualty he was a fireman employed on the train engine. At the
The discrepancies in Hyers’ testimony on his direct and cross-examinations do not seem to be great, considering the lapse of time since the casualty. The man was a hardy railway operative, rendered keen and alert by the exacting necessities of his arduous training and calling. Doubtless the shock of a great catastrophe and his first desire to exculpate the railway servants from all blame centered his attention on the accident in the abstract rather than in the concrete, and his failure to minister immediately to those he claims were the survivors of the tragedy may be thus accounted for. His failure to so minister in the first instance may be as abhorrent to humanity as is claimed by counsel, but the surrogate is not here to determine its consistency with the dictates of humanity but with the truth. The truth of Mr. Hyers’ testimony is the only matter before the surrogate.
In so far as Mr. Hyers’ testimony is that Mrs. Laffargue was alive and Mr. Laffargue dead at a particular point of time, it would seem that the question to elicit it was competent and the answer both competent and conclusive, unless Mr. Hyers’ statement that Mrs. Laffargue was alive and Mr. Laffargue dead is impeached, contradicted or unworthy of belief. I think that the question was competent. Death and
Such inferences as those specified are aptly described as instantaneous conclusions of the mind from a variety of facts, partly consciously perceived and partly unconsciously perceived, or, in other words, apprehended. The ordinary witness could not give in detail the deductive processes or methods by which his inference was reached. The law of evidence would be a travesty if such a requirement were necessary in matters of common observation and daily experience. It is not true in a large range of matters that non-experts may not by the rules of judicial evidence state their belief. Their opinions or beliefs may be stated on disputed identity, resemblances, handwriting, mental and physical conditions, age,
It is claimed on the part of the sons of Mr. Laff argue that Mr. Hyers’ testimony is to be disregarded, in the next place, because he is contradicted by witnesses, and next because he has forsworn himself by his earlier testimony at the coroner’s inquest. The witnesses offered to contradict Hyers are several plumbers who apparently were catching a ride on the express train which struck Mr. Laffargue’s automobile. I have read their depositions and evidence with scrutiny and care. The variation in their testimony as to the positions of the four victims is apparent, but Clayton agrees with Hyers that Mrs. Laffargue’s body was next to Mr. Lurch. This corroborates Hyers in one important point. That Hyers reached the scene of the accident first I am convinced. It would be natural that the trainman who first saw the collision should reach the scene of the disaster first in order. That he then saw what he states I believe. That other persons soon afterward came to the scene is probable. How soon is conjectural or uncertain. That Mr. Laff argue had when Hyers first saw him. a bolt through his head as Hyers states is corroborated by the testimony of the undertaker who carried
The position and order of the several bodies when found I do regard as indirectly of some importance, although it was not adverted to by the counsel on the hearing before me. If, as Hyers and Clayton both state, the body of Mrs. Laff argue when found at the station lay next to Mr. Lurch, who survived the collision, it would tend to show that both Mrs. Laffargue and Mr. Lurch may have met the impact of the train at a more favorable angle or second of time. Both Mrs. Lurch and Mr. Laff argue, whose bodies came first in order, must have been more directly in the line of greatest resistance and force or momentum. But whether this inference of
But it is unnecessary for me to review in detail all the testimony offered in support of survival, or to assiin all the reasons which induce me to believe that Hyers told me the truth under oath. That his testimony at the coroner’s inquest, if unexplained, varies from his testimony on the stand, is apparent. But it is not so inconsistent with his latest statement under oath as to be directly contradictory of the latter, nor does it compel me to reject his testimony. The testimony which he gave at the inquest was directed to the cause of an established death and Hyers there testified truthfully that at some time while he was at Allaire Mrs. Laffargue was dead. I do not think before the coroner his attention was directed to the signs of life which he first detected and later swore to before me. I am unwilling to reject the positive testimony of this apparently respectable and disinterested witness that Mrs. Laff argue was alive and Mr. Laffargue dead at the same moment of time. If I do not reject it, I am bound to find that the petitioner has made out her allegation, that Mrs. Laff argue survived her husband, for Hyers’ testimony is not contradicted and is credible. The decree and further proceedings herein may provide that Mrs. Laff argue survived her husband.
Decreed accordingly.