33 N.C. 160 | N.C. | 1850
Samuel Spencer died intestate in Hyde County, in May, 1846, and in November following administration of his estate was granted to Thomas B. Gibbs, who entered into the usual bond for $2,500, with the defendants as his sureties. The intestate left no issue, and Gibbs married his aunt and claimed to be entitled in her right, as sole next of kin, to the personal estate. He sold the effects and got in the money to the amount of $829.09, which he applied to his own use, and then he died *124 insolvent, in April, 1848. John Spencer, a brother of the intestate Samuel, formerly resided also in Hyde County, and left it on 1 May, 1841, saying he was going to some distant Western State, and he has not since been heard of; and in May, 1848, administration of the estate of the said John was granted to the relator, as upon a death and intestacy; and in August, 1848, this action was brought on the administration bond, alleging the breach to be in failing to pay the said sum to the relator, as the administrator of said John, the surviving brother (161) and sole next of kin of the intestate Samuel. The pleas were conditions performed and no breach.
Upon these facts the court was of opinion that the plaintiff could not maintain the action, and ordered a nonsuit, and the relator appealed.
To constitute the relator's intestate Samuel's next of kin, it is necessary that John should have survived his brother: as to which point the only evidence is that, at the time of Sammuel's death, seven years had not elapsed from John's departure from this State, though that period has now elapsed, and had when administration was granted to the relator. It is thence inferred that John Spencer is now dead, but that he was not dead at his brother's death in 1846. The rule as to the presumption of death is that it arises from the absence of the person from his domicil without being heard of for seven years. But it seems rather to be the current of the authorities that the presumption is only that the person is then dead, namely, at the end of seven years; but that the presumption does not extend to the death having occurred at the end or any other particular time within that period, and leaves it to be judged of as a question of fact, according to the circumstances, which may tend to satisfy the mind that it was at an earlier or later day. Doev. Napeau, 5 Barn. and Ad., 86; 1 Greenleaf Ev., sec. 41. The authorities, however, are not uniform upon the point. Smithv. Knowlton,
PER CURIAM. Judgment affirmed.
Cited: Ferebee v. Baxter,
