Problems of Survivors/iip.
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that arise as if there were? On the whole, he need not establish it for the purpose of it seems that a supposition of death at the i disproving his opponent's chain of title, even same time is not the true solution. though the latter, if established, would be su
- We are thrown back then upon the state
perior to his огип. An examination of some ment that survivorship must be proved by of the cases will make the meaning and ap the party asserting it. This means, of plication of this statement clear. course, that he who has the burden of proof There are a number of cases of intestacy of survivorship must, in the absence of suffi where the intestate and his nearest of kin cient evidence, fail.1 This seems unobjection perished together, and the contest is between able, but the difficulty is to apply it. Who ihe representatives of these nearest of kin and has the burden of proof? The problems that more remote kindred who are entitled to the are created by the inability to fix the order property if the nearest of kin did not suc of death are so various that it would not ceed to it. In re Green's Settlement1 is a have been surprising had it proved impossi simple case of this kind. The property in ble to find any one principle that would question was included in a marriage settle cover all the cases. But keeping in mind ment, the trusts of which were exhausted. that the exact legal effect of the facts to The wife was settlor of this property, and so which it is to be applied must be understood, there was a resulting trust for her estate. and that it is subject to possible modification She, with her husband and only child, were by other established rules concerning the killed in the Indian mutiny. The husband burden of proof, there is a single principle died_first. Survivorship as between mother which explains at least all the cases which have thus far arisen. In the largest class of and child was undetermined. ' If the mothersurvived, her next of kin were entitled, and cases the parties are claiming title to property, they were the petitioners; if the child sur7 the ownership of which depends upon who, vived, its next of kin were, entitled, and one of those who perished, survived the longest. of the respondents _was itj administrator. These constitute about three-fourths of all. The next of kin of the mo'ther succeeded. Another class of cases consists of contests The decision accords fully with our rule. over the proceeds of insurance policies, the The next of kin of the mother tak,e directly.insured and the beneficiaries, or some of from her. Their chain of title is complete them, having succumbed in the same calam ity. The other instances are scattering. The in showing her deajh-and their myn_sjintworgeneral principle can best be stated in con- | shig.. They need not disprove the survivor nection with the first class of cases men ship of the child in order to overthrow their opponent's chain of title. The representa tioned above. Its application to the others tives of the child, on the other hand, do not will be apparent. make out their chain of title without prov Beginning then with what we may call ing its survivorship. Upon them then rests the descent cases, our largest class, what is the burden of proof of that fact. As the the rule for determining- the burden of proof which governs them? Here each" party court said, "... a person claiming under such a title must go further and must shew wishes to make it appear that the person from whom he would have derived title sur not only that the person through whom he vived. The solution that the authorities in claims would have been entitled if he sur dicate may be stated thus: Any claimant has vived, but that he actually was entitled, or, in the burden of establishing survivorship so far 1 L. R. i Eq. 288 (1865). as it is essential tn his own chain of title, but
