104 N.Y.S. 147 | N.Y. App. Div. | 1907
The testatrix left personal -property only.- She left neither parent nor descendant surviving her. 'Both - she and "her husband were victims of the disaster which resulted in the burninsr- and
The burden of proof of survivorship rests on the appellants. The law is settled in this State that there is no presumption of survivorship in the case of persons' who die by a common disaster. In the absence of satisfactory evidence, the fact is assumed to be unascertainable, and the property rights are disposed of as if death occurred at the same time, not because of the presumption of siinultaneous death, but because of. the absence of evidence or presumption to the contrary. (Newell v. Nichols, 75 N. Y. 78. See to like effect St. John v. Andrews Institute, 117 App. Div. 698).
I think the evidence very clearly establishes the fact that the testatrix died before her husband. The boat took fire while proceeding up the East river, at some point below One Hundred and Thirty-fourth street, and between One Hundred and Thirty-fourth and One Hundred and Thirty-fifth streets passengers were seen jumping or falling into the river. Mrs. Gerdes was one of the first, and her body, if the identification is sufficient, was brought ashore and laid upon a float at the foot of One Hundred and Thirty-eighth street, while her husband was standing on the hurricane deck where ' he remained until the boat was beached and went to pieces .at the “ Sunken Meadows,” near Horth Brother island. That Mr. Gerdes remained alive upon the boat until it was beached is undisputed, and . the controversy accordingly depends on the question whether the ' body on the float referred to was that of Mrs. Gerdes.- A yachtsman, named Orth, who was rowing a skiff at the time the fire broke out, picked up and brought to the float three bodies, one a middle-aged woman, one a gray-haired woman, ;about -seventy years old, ■ that being the age of Mrs. Gerdes, and a baby, They were • the first bodies brought ashore. He brought them ashore dead, as I have said, some little time before the Slocwm was finally beached.
But there, is considerable other evidence tending to establish the fact that the body did exhibit the scar in question. The brother of Mr. Postel, who viewed the remains when the body was brought to the house, testified that there was a bruise at the side of the face . around the temple. The undertaker swore that he saw the cut on the side of the face just above the eyebrow, and stated that it was about an inch and a quarter long. The lady who prepared the body for burial testified that she saw the cut; that it was-a slight one; that she thought it coxild be covered with powder so.as not to be .noticed, and that she obtained some powder and xxsed it for that purpose, so that the-mark was practically obliterated. As against this evidence there is only the testimony of two ladies, each of whom stated that she did not see the bruise or cut. There was other evidence given on behalf of the respondents which may Jba regarded as somewhat material, but certainly not as controlling. But in the absence of any evidence tending to indicate that the body received from the morgue was not that which was brought to the float, the time of the death of Mrs. Gerdes must be deemed to have been established as prior to that of her husband, so far as could be. expected of human evidence in the circumstances.
There was one other feature of identification which has some force and significance. Mrs. Gerdes was in the habit of wearing a .rubber stocking, and learning fx;om his'wife, Mrs. Gerdes’ stepr "daughter, that she had it on on the occasioxi in question, Mr» Postel had the fact verified before the removal of the body from the
There is other evidence in the case which tends to some extent to support the claim that Mrs. Gerdes either juriiped or was thrown into the water and was drowned while her husband was still alive. One of the witnesses who knew them both testified that as the boat was going up the river before the fire she saw them sitting on the middle deck, just under the hurricane deck, close against the rail, ■ on the port or Manhattan side of the boat, “ right alongside of each other.” - Mr. Gerdes was an old man of eighty.. There is no question about the identification of both of them at that time. They were only six of eight feet away from the witness, and a lady friend ■ who was with her went over to see them, saying that she was going over to speak to Mr. and Mrs. Gerdes. 'She did as she said and. after seeing them came back and sat with the witness. Another witness testified that shortly after the fire broke out she saw Mr. Gerdes standing on the hurricane deck, all alone. That was the last she saw of him before the boat was beached. She had known him from ,her childhood. It is true that she was not acquainted with Mrs. Gerdes, but she knew that Mrs. Gerdes was on the excursion. Being shown the photograp>h of Mrs. Gerdes,'she testified that she did not recognize any person on the hurricane' deck of whom that was a portrait. She testified that at the time when she last saw him the fire was pretty well advanced, that he was. standing on the left side- of the deck, looking towards the fire, standing in a dazed way with an umbrella in his hand, and that- “ there was nobody around him.” ' ■ . .
An. old man and an old woman, husband and wife, sitting together at the commencement of such a disaster, would be unlikely to part company unless by stress of the calamity. The evidence' of these
The decree should be reversed, with costs to the appellants payable out of .the fund, and the proceedings remitted to the' Surro- • gate’s Court for distribution of the estate , on the theory that the testatrix left her husband surviving her.
Woodward, Jenics, Hooker and Gaynor, JJ., concurred.
Decree of the Surrogate’s Court of Kings county reversed, with costs to the appellants payable, out of the fund, and proceedings remitted to the Surrogate’s Court for distribution'of the estate on the theory that the testatrix left her husband surviving her.