Problems of Survivorship. case. A testator insured certain personal property which he had bequeathed to A. The testator and the property were lost to gether. There was no evidence as to which survived. It was held that the proceeds of the insurance belonged to the estate and not to A. A's title to the property and so to the insurance money depended on its surviv ing the testator. Thi# cast the burden of proof upon him and caused his failure. There are a few cases where the oath required of one applying for administration was changed to meet the difficulty of inability to establish the order of death.1 In a couple of cases the same principle was applied, although the failure to establish the order of death arose from the absence of one of the parties at the time of his death and the lack of information as to just when it occurred.2 One state of facts raises a problem which it seems neither the rule herein suggested nor any other known to the law will ade quately solve. In re Rhodes3 presented this difficulty. An owner of property left home and was unheard of for seven years. Ad ministration to his estate was granted, the presumption of death having arisen. The question was. who were his next of kin. At the beginning of the seven years a mother and two brothers were his nearest kindred. Their representatives claimed the property. 1 Goods of Vainwright. I Sw. & Tr. 257 ( 1858) : Goods of Ewart, I Sw. & Tr. 258(1859); Goods of Grinstead, 21 I.. T. n. s. 731 (1870); Goods of Johnson. 78 L. T. n. s. 85 (1897). 2 In re Vhene's Trusts, L. R. 5 Ch. 139 ( 1809); Schaub г: Griffin. 36 At. 443 (Md. 1897). In Wright r. Netherwood, 2 Salk. 593 n. (a). 2 Phillim. 266 n. (c ) (1793) the question involved was the ap plication of the rule that the burden of proof of revoca tion of a will is on the contestant. Williams. Kxtcutors, 7th Am. Ed. I, 210. 214: Page, Wills, 3.448. This rule supplanted the ordinary principle which we have seen applies generally. Kansas Co. v. Miller, 2 Colo. 442, 464 (Ter. 1874) wasan action for wrongful death. The wife, who would be the one primarily entitled to sue, died in the same railway accident with her husband. The result of the case is perfectly consistent with the principle gov erning the burden of proof which the other cases estab lish. It seems unnecessary to work this out in detail here. 3L. R. 36 Ch. Div. 586 (1887).
243
At the end of the seven years the six chil dren of one of the brothers were the next of kin, the mother and both brothers having died. The children also claimed the prop erty. There was no evidence concerning the time during the seven years that the absentee died. The learned justice followed the more common rule that there is no presumption on that poict) He admitted his inability to decide between the claimants and suggested a compromise. The representatives of the mother and brothers could not prove that these persons survived the absent owner. They therefore failed. But why did not the children succeed? They would take directly from the deceased WlfB could prove their survivorship.- The answer depends on when they were born, which did not appear. If they were born after the deceased was last heard of it seems that they would properly fail. They could not prove that they were in existence when he died. Surely this must be essential.4 But even if the children were born before the deceased left home, it is not certain that they would be held entitled. There was a period at the beginning of the seven years extending until the mother and brothers were all dead, during which the children were not next of kin. If the de ceased died in that period they would have no rights. Possibly this would exclude them.6 At all events under the first supposi4 Even proof that the claimant was in existence during the entire seven years and so must have been alive at the time of the death of the absentee owner, coupled with the fact that he survive^, would not. necessarily entitle him to recover. L'nder the supposition just discussed in the text, neither the mother and brothers nor the children could make out their title. Could a cousin who lived during the entire period of absence have a better claim? At no time during the seven years would he be next of kin. 5 When property is given to next of kin surviving ¡i dis aster as against nearer kindred who perished in it, the question is not the same. There, though it is highly probable that the kindred who died did not succumb at the first moment of the period of danger, yet it Is possible that they did. It is therefore at least possible that the surviving kindred were the next of kin through out the entire period during which the deceased mayhave passed away
