Stockbridge

145 Mass. 517 | Mass. | 1888

C. Allen, J.

Assuming that the statements contained in the deposition were true, they are sufficient, in the absence of anything to the contrary, to raise a presumption of fact that David H. Stockbridge died before the testator. The rule is carefully stated in Loring v. Steineman, 1 Met. 204, 211, by Chief Justice Shaw: “ Upon a person’s leaving his usual home and place of residence for temporary purposes of business or pleasure, and not being heard of, or known to be living, for the term of seven years, the presumption of life then ceases, and that of his death arises. But this presumption may be rebutted by counter evidence, or by a conflicting presumption.” And in Prudential Assur. Co. v. Edmonds, 2 App. Cas. 487, 509, it was stated by Lord Blackburn to be “ necessary, in order to raise the presumption, that there should have been an inquiry and search made for the man among those who, if he was alive, would be likely to hear of him.” See also Flynn v. Coffee, 12 Allen, 133; Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, 96; Bowditch v. Jordan, 131 Mass. 321; In re Phene’s trusts, L. R. 5 Ch. 139; In re Lewes' trusts, L. R. 6 Ch. 356; 1 Greenl. Ev. § 41; 1 Taylor Ev. § 200. It should therefore now be taken for granted that David H. Stockbridge died before the testator; and by virtue of the Gen. Sts. c. 92, § 28, reenacted in the Pub. Sts. e. 127, § 23, his issue who survived the testator are entitled to take what he would have taken had he survived the testator. The circumstance that the gift to him was only as one of a class does not prevent the operation of this statute. Moore v. Weaver, 16 Gray, 305. The' fact that David H. Stockbridge was a nephew of the testator is found in the will. It does not appear, nor in the view which we have taken is it material, whether any children of Chester Stockbridge survived the testator; that fact, if it existed, would not cut off the right of the children of David H. Stockbridge; it would only diminish the amount to which they would be entitled.

The executors of the will of Elam Stockbridge deposited the money in the Springfield Institution for Savings, by virtue of an order of the judge of probate, passed in pursuance of the St. of 1885, e. 376, it being recited that it appeared to him that the residence of David H. Stockbridge was unknown. This, however, was not intended to have any further effect than to provide for the proper keeping of the money, with its accumulations, until it should be ascertained and determined who are properly entitled to receive the same. It now appears that the petitioners are so entitled; and an order may be framed for the payment of two thirds of the amount to the two petitioners who are sui juris, and of one third to the guardian of Mary G. Stockbridge, a minor, when such guardian shall be duly appointed.

Decree accordingly.