5 N.J. Eq. 484 | New York Court of Chancery | 1846
The statute provides, that any person who shall absent himself or herself from the state for seven years successively shall be presumed to be dead, unless proof be made that he or she was alive within that time. The bill states that Jasper B. Smith left the state in 1829, and that he, 'has never been heard from since. The answer admits his absence from the state since 1829 ; hut says he has been heard from. A replication was filed by the complainants.
The words of the statute and the reason of the thing require that, unless proof he made that the person absenting himself has been heard from, the presumption of his death arises at the expiration of seven successive years of absence. The party seeking to avoid this presumption, or, rather, to prevent its arising, can do it only by showing that the absent person was •alive within the seven years. There is nothing in the evidence •to show that Jasper was alive within seven years after he left the state.
As the case stands in proof, he left the state in the spring of 1829; and the presumption of his death arose in 1836. No •dividend liad then been made; and by the terms of the will the estate was to be divided among the surviving residuary legatees.