Problems of Survivorship.
237
PROBLEMS OF SURVIVORSHIP. BY CLARKE BUTLER WHITHER, Professor in the Law School of the University of Chicago. AS a result of the Iroquois Theatre disas ter in Chicago the courts will likely be called upon to decide some or all of the interesting legal problems that arise when property or other rights depend on the or der in which two or more persons died, there being no evidence sufficient to estab lish it. Did A survive B so that a devise from В to A took effect with the result that A's heirs and not B's are entitled to the property? Did the first beneficiary of a policy of insurance survive the insured so as to become entitled to the amount due on the policy, which would then pass to his next of kin; or did he pre-dec|ease the in sured, in which event the second beneficiary would have the greater right? These are ex amples of the questions that arise. How does our hw deal wkh them? Some things are settled, but much is yet in considerable doubt. Despite occasional statements to the con trary,1 it is established that there is no pre sumption that any particular person or per sons survived the others.2 It is equallyclear that if there is sufficient evidence to establish the actual order of survivorship as a fact, its use is legitimate and desirable.3 In such a case the difficulties are avoided. It may also be considered certain today that there is no presumption that all died at once.4 Nor is there any presumption even that there was a survivor.5 There is thus no 'Colvin n. Procurator-General, i Hagg. Kc. 92 (1827); Moehring?'. Mitchell, I liarb. Ch. 264 (1846). 2 Most of the cases are collected in a note in 51 Law yers' Reports Annotated, 863. The following may be added: Robinson r. Gallier, Keel. Cas. 11,951 (Cir. Ct. for La. 1875): Faul т. Hulick, 18 П. С. App. 9(1901) overruled by the next case; V. V. ('. Home т. French, 187 U. S. 401, 23 Sup. Ct. 184 (1903); Middeke т. Balder, 198 Ill. 590, 594, 64 N. K. 1002 (1902); l". S. C.
presumption of any kind, and in the absence of sufficient evidence, the common law re gards the order of death or survivorship as unascertainable. What then is to be done? Two statements are common in the books. The first is that "survivorship in such a case must be proved by the party asserting it."" The other is that "property rights are disposed of as if death occurred at the same time."T This Co. 7'. Kacer, 169 Mo. 301, 310, 69 S. W. 370 ( 1902); Supreme Council r. Kacer,90 Mo. Ap. 93, 69 S. V. 671 (1902); Southwell r. (¡ray, 72 N. V. Supp. 342 (1901); Hildebrandt v. Ames, 27 Tex. Civ. Ар. 377. 3^0, 66 S. W. 131 (1901); Screwmeu's Ass'n.?•. Whitridge, 95 Тех. 539, 68 S. W. 501 (1902); Males r. Voodmen, 70 S. W. 108 (Tex. Civ. Ар. 1902). In California and Louisiana, however, presumptions similar to those of the civil law exist. Hollister r. Cordero, 76 Calif. 649, 18 Рас. 855 0888); Succession of Laugles. 105 La. An. 39, 29 So. 739 (1901). In both States tht. presump tions apply only in the absence of evidence sufficient to solve the question. 3Broughton 7'. Randall, Cro. Eliz. 502 (1596): Sillick v. Booth, i Y.&C.(Ch.) 117, 124, 126(1842); C'nderwood 7'. Wing, 19 Beav. 459 (1854) affirmed 4 De. G. M. G. 633 (1855); Robinson тл Gallier, Fed. Cas. 11,951 (Cir. Ct. for La. 1875): Smith 7'. Croom, 7, Fia. 81,144 ff(1857); Coye?•. Leach, 8 Met. 371, 374 (Mass. 1844); Broome?•. Duncan, 29 So. 394 (Miss. 1901); Tell t: ВаП, Chev. Kq. 99 (S. С. 1840); hhle's Will, 73 Wis. 445, 41 . W. 627 (1889). 4 Underwood- r. Wing, 4 De. G. M. & G. 633, 660 (1855); Wing т. Augrave, 8 II. L. Cas. 183, 199 (1860); Middeke ••. Balder, 198 Ill. 590, 594, 64 N. K. looj (1902); Russell r. Hallet, 23 Ksn. 276, 278 (1880): Johnson -: Merithew, 80 Me. in, 116, 13 At. 132 (1888); Cowman 7. Rogers, 73 Md. 403, 21 At. 64 (1891); Newell r. Nich ols, 75 N. Y. 78 (1878). The tally English cases contra are overruled by Wing т. Augrae supra. They are the following: Wiight 7'. Nelherwcod, 2 Salk. 593, n. (a), 2 I'hillim 266, n. (c) (1793); Taylor т. Diplock, 2 1'hillim. 261, 280 (1815); Goods of Selwyn, 3 Ilagg. EC. 748 (1831); Satterthwaite -, . Powell, i Curt. Kc. 705 (1838). Perhaps all these cases could have been, and at least two of them were, put also on other grounds. The dictum in Kansas Co. т. Miller, 2 Col. (Ter.) 442, 464 (1874) contra is clearly erroneous. ¡ Newell r. Nichols, 75 N. Y. 78, 88 (1878). 6 Cowman v. Rogers, 73 Md. 403, 406, 21 At. 64 (1891). • Newell v. Nichols, 75 N. Y. 78, 89 (1878).
