23 Pa. 114 | Pa. | 1854
The opinion of the Court was delivered by
Here was a legacy of $500 to A., the testator's son, to be paid when called for without interest, and if not called for then to be paid to B. and 0., two grandsons, at any time after the death of A. At the date of the will A. was absent and had not been heard of for several years; and twelve years afterwards, the legacy still remaining unpaid, this proceeding was instituted by B. and C.-to recover it. The subject was referred to an auditor, who reported that A had not been heard' of since 1837, when he wrote from Arkansas to his relatives here; that he must be presumed dead in 1844; and that the legacy was payable to B. and C. with interest from the latter date. The Court so decreed.
1. The appellant, who was sole executor of the will and devisee of the land on which the legacy was charged, insists that the evidence before the auditor was not sufficient to justify his conclusion. A fact found by an auditor must be taken as true, unless the error be palpable. Here it is not so by any means. The proof might have been stronger and fuller, but it was enough to make out a case primd facie, in the absence of. all contradiction. The testimony of a relative would have been more satisfactory than that of a mere neighbor and friend; but if the members of the family had heard of the person in question more lately than 1837, why did not the executor call them ? If there was any serious doubt upon this question, it would most probably have been contested before a jury. These considerations satisfy us thatw'e do no wrong in treating the report as a verity. ■ We cannot but believe that a further investigation of this point would result in the same way.
2. But it is further argued that the evidence, if taken for true, does not raise the presumption of the primary legatee’s death until 1847, because in 1840 (the date of the will) he was assumed to be a living man by the testator. This proposition is wholly unsound. The testator had no ground for' believing him dead within three years after the date of his letter; though he was evidently uncertain about it: he contemplates that the legacy will never be called for as a probable contingency, and therefore bequeaths it over. But it-is no matter what the testator thought. A person is presumed to be dead after the lapse of seven years from the time when he was last actually heard of, and this presumption is not repelled by the fact that somebody supposed him to be living at a later period.
• 3. The appellant thinks he can concede the facts found by the auditor, and still show the decree against him for interest to be wrong as matter of law. He bases this argument on the words of the testator, by which he gives the money to his son when called
Decree affirmed.
