23 Kan. 276 | Kan. | 1880
The opinion of the court was delivered by
This was an action in the nature of ejectment, tried before the district court of Chase county, with a jury. The action was commenced originally in. Green wood county. Certain facts were agreed to, and all the evidence produced is incorporated in the record. The facts agreed upon are substantially as follows: The land in controversy was owned by one William H. Hallett, who died Januaxy 17th, 1868, leaving a widow, Maria E. Hallett, and three children, named and born respectively as follows: Marietta Hallett, born April 3d, 1858; Chax'les H. Hallett, born April 20th, 1862; William W. Hallett, born April 8th, 1867. The latter, William W. Hallett, died Max’ch 6th, 1868, and the widow, Maria E. Hallett, married one R. A. Hitchcock, July 4th, 1868. In February, 1871, she and her two children, Marietta and Charles H. Hallett, died. The widow, Maria E. Hallett, and her children, continued to occupy the land
The jury, in answer to certain questions, returned the finding that Maria E. Hitchcock and her children, Marietta Hallett and Charles H. Hallett, died in the same calamity and all at the same time, in Fall river, Greenwood county, in this state, on the morning of February 24th, 1871. The defendant in error, Sarah C. Hallett, claims that she inherited the property from her grandchildren, Marietta and Charles' H. Hallett — both of the parents of the latter being dead. On the part of the plaintiffs in error, it is contended that R. A. Hitchcock inherited all the property, and that W. L.' Russell, at the commencement of the action, was the owner of it under the conveyance to him by the deed of Hitchcock of June 14th, 1871..
The first question presented is, whether Maria E. Hitchcock, the mother of Marietta and Charles H. Hallett, survived her children ? Counsel of plaintiffs in error claim the court erred in its direction to the. jury concerning survivor-ship, and that the jury arbitrarily disregarded evidence proving conclusively that the mother survived her children. It is contended by such counsel that the presumption of fact is-that the children being of tender years, perished first. Upon this point, the court instructed the jury:
“That when several persons lose their lives by the same event, there is no presumption of law as to survivorship based upon age or sex, nor is there any presumption that they all died at the same moment. The law makes no presumption on the subject, but leaves the survivorship, to be*278 determined as a fact by evidence, and the burden of proof is on the party asserting the affirmative.”
This is correct, and the court committed no error in thus instructing. In Newell v. Nichols, 75 N. Y. 78, the law of survivorship has been examined very recently, and the doctrine above stated fully sustained. That was a case of a mother, her married son, and his two children, aged two and seven years, who perished by drowning on the steamer Schiller, when that vessel was wrecked in 1875. Church, C. J., says:
“It is not impossible for two persons to die at the same time, and when exposed to the same peril under like circumstances, it is not as a question of probability very unlikely to happen. At most, the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life-struggle one or the other may have first ceased to gasp.”
In the absence of other evidence, the fact as to who was the survivor, where several persons perish in the same catastrophe, is assumed to be unascertainable, and property rights are disposed of as if death occurred to all at the same time. "While therefore it is correct to say the law makes no presumption on the subject, the practical consequence is nearly the same as if the law presumed all to have perished at the same moment. In re Hall, 8 Ch. L. N. 68; (Cent. L. J., No. 20, vol. 9, 381, 382;) Newell v. Nichols, 19 N. Y. Sup. Ct. 604; Coye v. Leach, 8 Metc. (49 Mass.) 371.
The testimony of Jonathan Hodgson, which counsel claim was disregarded, was to the effect that on February 24th, he was sleeping in a cabin near Fall river, about nine rods from where Mrs. Hitchcock was found drowned; that he was acquainted with her voice, and that he was awakened on the morning of the 24th by hearing Mrs. Hitchcock calling out:. “Mr. Hodgson, save me! I am drowning!”; that his first impression was' that he was dreaming; that he dressed himself, told his son to get up and make a fire in the furnace;
When William H. Hallett died, January 17th, 1868, one-
As all the facts in the case were not agreed upon, and as the court erred in its direction concerning the descent and distribution of the property, we cannot direct the court below to enter judgment, but must award á new trial.
The judgment of the district court will be reversed, and) case remanded.