Stinde v. Goodrich

3 Redf. 87 | N.Y. Sur. Ct. | 1877

The Surrogate

[stating the facts as above]. — I have been furnished with what purports to be the decision of Judge Van Vorst (Supreme Court, special term), in which the question is discussed and determined as to the survivorship, growing out of the loss of the Schiller, in proceedings for instructions to the executor under the will of Elizabeth M. Walter, deceased, for the construction thereof, and a determination whether decedents, in these proceedings, their father or grandmother survived, and in which, after the consideration of the authorities upon the subject, the learned judge reaches the conclusion that, in the absence of any testimony upon the subject, there is no legal presumption of survivorship where persons perish in the same disaster. This decision, it seems to me, is proper and entitled to respect.

In Moehring v. Mitchell (1 Barb. Ch., 264,) the learned Chancellor, in speaking of certain English authorities upon the questions involved in these proceedings, says: “In the case of Taylor v. Diplock (2 Phillimore, 267); Colvin v. King’s Proctor (1 Hagg. Ecc., 92); and in Selwyn’s Case. (3 Id., 784), it appears to have been supposed, in the absence of any evidence to justify a different conclusion, that the court would be bound to presume survivorship in' the husband, where the husband and wife perish together at sea, upon the ground that the greater strength of the male would probably enable him to sustain life the longest in such a calamity.” But Greenleaf (1 Greenl. Ev., § 30, p. 41, n.), speaking of these cases, says that “the point was not much mooted,” and at the bottom of the section says: “In the absence of all evidence of the particular circumstances of the calamity, probably this rule (that both perished together) will be' found safest and most convenient.” Whether the English authorities above cited be recognized as the law in this case, or whether, in the absence of proof, the presumption is that they perished by the common disaster, at the same time, the petitioner in this case would seem to be entitled to the fund in question. According to the English' rule, Mr. Walter would be presumed to have survived both his children and the grandmother, and the petitioners are shown to be the next-of-kin, as well of him, as of the decedents, (his children), and in the absence of any suggestion on the part of any of the parties that there is proof of the survivorship of the grandmother, I am of the opinion that the prayer of the petition in this matter should be granted.

Let an order conformable thereto be presented for signature.