238
Tiie Green Bag.
second suggestion, though exceedingly com mon, the writer believes untenable. It is merely a rule of thumb, which, while accom plishing the result the courts desire in the majority of instances, fails completely in cer tain cases. In Hartshorne v. Wilkins1 the testator gave certain property to trustees on trust to dispose of the income in certain ways during the life of his daughter Louisa, and after her decease to transfer the fund to such of her children "as should then be liv ing," and "should his said daughter Louisa die 'without leaving any lawful issue," then to transfer the fund to certain nieces. The daughter Louisa and all her children per ished in the same disaster and there was no evidence sufficient to establish survivorship. It was held inter alia that the nieces could not take "because their title depended on the daughter dying without leaving any law ful issue, and there is no proof whether she did or did not so die, that is, whether her children did or did not survive her.2 Now if the property should have been disposed of as if all died at once, the decision was er roneous. In that event the daughter wcjuld have dietl "without leaving any lawful issue," and the condition on which, according to the court, the title -of the nieces depended would have been performed. In United States Cas ualty Company v. Kacer3 the policy was pay able to "Miss Florence Yocum, daughter, if surviving, if not, to the legal representatives of the insured."4 Miss Yocum and her father, the insured, were lost in the same catastrophe. The court held that her repre sentatives were entitled to the proceeds of the policy. The argument of the court was that "a policy payable to a named benefi ciary, but with such words of divestiture, creates a vested interest in the policy, and the money to arise out of it, in the primary 1 2 Old. 276 (Nova Scotia, 1866). 2 Ib. 288. 3 169 Mo. 301, <x) S. V. 370 (1902). 4 Ib- 307-
beneficiary, coupled with a condition subse quent, that the vested interest shall be di vested out of the primary beneficiary and his representatives and vested in the alter native beneficiary upon the happening of the subsequent contingency of the primary beneficiary dying before the assured^'5 The last clause stating the contingency was evi dently a slip. The contingency provided for in the policy is not pre-decease but nonsurvival.c_ The representatives of the in sured then had to show non-survival of the first beneficiary.7!^ But if it is to be taken that the insured and the beneficiary died at the same moment, non-survival is the basis on which the case should have been decided, The result would be that the interest of the first beneficiary terminated and the repre sentatives of the insured were entitled as the alternative beneficiary.8 Not only are these cases inconsistent with the supposition of synchronous death, but all the cases in which that notion was applied are equally explica ble on other grounds which harmonize all the authorities. Again, as is occasionally no ticed by courts adopting this suggestion of simultaneous death, to hold that property is disposed of as if all died at once is in sub- . stance to adopt a presumption to that effect.8 Is it not absurd to say that there is no such presumption and yet to settle all questions
- Ib. 316-17.
6 See the words of the policy quoted abore. 7 The burden of proof was cast on the alternative beneficiary (p. 517) in accordance with the general rule that the happening of a condition subsequent must he proved by the one who asserts that the vested interest has terminated. For a more complete explanation of this see infra p. 22. ' One may possibly dissent from one or both of these cases on the ground that the court laid too much empha sis on technicalities in construing the will in the one case and the contract in the other, and overlooked the real intention of the parties. See infra pp. 13, 22. But that does not weaken their authority on the point now under consideration. Suppose the conditions which the courts found had been so expressed that no possible construction could avoid recognizing them, were the decisions wrong because the court did not take it that death was simultaneous in such cases? 9 Newell r. Nichols, 75 N. Y. 78, 90; Russell r. Hallett, 23 Kan. 276, 278.
