« НазадПродовжити »
A similar difficulty sometimes arises in proving that the party claiming an estate under a particular limitation sustains in fact the character in which he claims, and answers the designatio persona contained in the limitation. It has sometimes happened through carelessness, that an estate has been settled on the first son only of a person, with remainder over (omitting limitations to the second and other sons) to a stranger. In cases of this sort, it is evident that peculiar caution must be observed before a purchase from a person claiming in such character can be completed; for although he may always have had the reputation of being the eldest or first son, yet he may in point of fact be only the second son, a misconception prevailing on this subject from the fact of there having been an elder in birth, who died in extreme infancy before he could acquire the reputation of first and eldest son. But provided there has been a long undisturbed possession by the claimant, absolute proof of his being actually the person he represents himself to be, may then be dispensed with. The acquiescence of the party entitled in remainder, as it evinces his belief, supplies at the same time a powerful attestation to the truth and justice of the possessor's claim. And unmolested enjoyment for the space of twenty or thirty years since the limitation vested in possession, may perhaps be regarded as sufficient for this purpose. The presumption thus arising would be materially strengthened, if during the continuance of a preceding [*]particular estate, the then tenant of the freehold so far recognised the title of the present possessor, as to join with him in suffering a recovery.
By the stat. 19 Car. II, c. 6, it is enacted, that if any persons for whose lives estates are granted or demised, remain beyond sea or otherwise absent themselves for seven years together, and no sufficient proof appears of their being alive, such persons, in favour of the lessors or reversioners, shall be accounted dead (1). The measure of time thus taken by the legislature as presumptive evidence of the deaths of persons absent and unheard of, has been adopted and applied by courts of law to cases not within the act. Hence, if tenant for life of an estate goes abroad, and no accounts of him are received for seven years, the remainder-man will be adjudged to be entitled to the possession (a). In like manner, the absence abroad of a husband or father for a similar length of time, with want of interim information concerning him, will let in the claim of his wife to dower, and of his eldest son as heir at law (6). And so in the case of tenant in tail or in fee simple not known to have had children, the circumstance of his being unheard of for the period above mentioned will so far establish the title of the remainder-man or collateral heir, as to give him a right to the possession (c).
In order to substantiate the right of a person claim
(a) Doe d. Lloyd v. Deakin, 4 14, Pl. 35, S. C. Barn. & Ald. 433.
(c) Doe d. George v. Jesson, (6) Thorne v. Rolff, Dyer, 185 6 East, 80; Doe v. Griffin, 15 2, pl. 65; Bendl. 81, Pl. 131 ; Mo. East, 293.
(1) 'This statute is adopted in Pennsylvania. Miller v. Bates, 3 Serg. & Rawl. 492. See Hutchins v. Erickson, 1 Har. & M'Hen. 339. Cusack and Wife v. White, 2 Const. R. 282.
ing as remainder-man after a life estate, as dowress, [*]or as eldest son and heir, it is not necessary that evidence of the previous owner's death and of the general ignorance concerning him should proceed from members of his family. The testimony of strangers residing in the neighbourhood of the property has been held sufficient for this purpose ; because if any of the family have, in the mean time, really heard of him they may be called on by the opposite party to rebut the presumption by their testimony (a). To prove the additional fact of failure of issue, so as to let in the right of a collateral heir, or of a remainder-man after a limitation in tail, stricter evidence than that of mere reputation may possibly be required, -namely, the evidence of relatives, or their hearsay (6). But although such evidence is of course more satisfactory, yet it may reasonably be doubted whether it should be regarded as absolutely necessary; for not only may evidence of reputation be, as in the former case, encountered by the testimony of the family, but should a contrary rule prevail, the remainder-man or collateral heir, if he should not possess the requisite proof, would be liable to be defeated of his inheritance (1). By admitting the inferior evidence, no injury is done to the absent party or his issue, for on his or their returning, the possession may again be recovered. And it has been determined in
(a) Doe v. Deakin, 4 Barn. & Ald. 433.
(6) Richards v. Richards, 15 East, 293, n.
(1) Miller et al. v. Bates et al. 3 Serg. & Rawl. 492. Fulweiler v. Baugher, 15 Serg. & Rawl. 55. Hall v. Commonwealth, Hardin. 479. King et al v. Paddock, 10 Johns. 141.
favour of a younger branch of a family claiming in consequence of the extinction of an elder, that if none of the elder branch has been heard of for a very considerable number of years, as fifty or sixty years, evidence to that effect is enough, [*]as showing prima facie that neither he nor any issue of his now exists (a) (1).
Where inconvenience must not necessarily follow or may be guarded against, it is probable that courts of equity will likewise regulate their decisions in respect to claims founded on the alleged deaths of
persons long unheard of, with special reference to the time laid down in the statute. It is true, that in those cases which have already occurred in equity on this subject, a much longer period than seven years appears to have elapsed. But the general principle from long absence was distinctly admitted : and arguing from that admission and the constant practice of equity to follow as far as possible the rules of law, there is every reason to conclude that in defining the exact limits of the principle, an analogy will be preserved to the provisions of the legislature.
It remains to notice on what occasions equity has
the presumed deaths of persons long unheard of. The cases are but few; the following being perhaps the only instances with which the books fur
(a) Rowe v. Hasland, 1 Black. 404.
(1) After the lapse of a period of more than one hundred years,
in the absence of evidence to the contrary, the death of a party without issue may be presumed. Oldham v. Wolley, 8 B. & C. 22.
nish us. In Bailey v. Hammond (a), on evidence of absence for twenty years without any intermediate account of the absent party, payment of a legacy was ordered to be made to the personal representative of a co-legatee, security being given to refund in case of his return. In a previous case, fourteen years' absence were considered sufficient to justify an administrator in proceeding for the recovery of the deceased's effects [*](b). And in Mainwaring v. Baxter (c), trustees of a legal estate in land given to secure a life annuity were directed, after a lapse of sixteen years from the time the annuitant was last heard of, to convey to the person entitled in remainder; a term, however, being created to secure payment of the annuity and of the arrears, in case the annuitant should re-appear.
With regard to titles the validity of which depends either on the fact simply of a particular death having taken place, or on the fact of such death having happened within a certain period, it is obvious, that the length of absence without information which the law adjudges to be primâ facie evidence of such event, cannot be relied on by a purchaser. It is at least certain that a purchaser would not be compelled in equity to accept a title so circumstanced. Where, however, merely the death of an individual, not his dying without issue, is in question, twenty or thirty years' absence unheard of may perhaps in most cases be considered sufficient to establish the fact : and generally speaking, a purchaser, under such circum
(a) 7 Ves. 590. See also Dixon v. Dixon, 3 Bro. Ç. C. 510.
(6) Lee v. Willock, 6 Ves. 605. (c) 5 Ves. 458.