244
Tliс. G i'ccii Bag.
Jim where no right to change the bene tion, that they were born after the deceased was last heard of, we have a case where ficiary is reserved the problem is complicated neither party can show title to the property by the fact that either by statute or judicial under the law as it now stands. Some pro decision it is almost universal law that the vision should be made to enable a court to beneficiary gets a vested interest in the con decide such a case. A presumption that death tract the moment it is mad«.4 This materi occurred at the end of the first year of the ally alters the situation. Suppose now that seven, to be applicable only when without it the insured and beneficiary have perished the rights of the parties ^^У^в be deter together. The beneficiary and not the insured mined. would perhaps^^HBBTsonable as was the owner. Those claiming under the any and afford a solu^P^Tt would not be beneficiary5 made out their chain of title by open to the objection urged in Nepean v. showing the death of the beneficiary and Knight a against a presumption of death at their own survivorship. The title need not the end of the seven years: namely, that "if be traced from the insured because it was not you assume that he was ali^J)n the last day in the insured. Assuming this vested inter but one of the sevJÉ^ears, then there is est doctrine and the absence of any condition nothing extraordinarTm his not having been in the policy for divesting this interest, the heard of on the last day and thus the reason representatives of the beneficiary are clearly for the presumption of death would -cease. entitled to the proceeds of the policy. Nor Moreover, it would not be so obviously con will the presence of a condition divesting the trary to the fact as a presumption of death interest of the beneficiary if he pre-deceases on the first day of the seven years.^ the insured alter the result. The representa We have left for consideration the insur tives need not establish the ¿ion-performance) ance contract cases. We may dispose first of of this condition. On the contrary, any bene those in which it appeared that the insured ficiary substituted in the event of this divesti had reserved the right to change the bene ture, or if none such, then the representatives of the insured, must prove the performance ficiary. In such a contract the beneficiary gets no interest until the death of the in (/of the condition. It is essential to their chain sured. - This makes them perfectly analo of title to show that ownership has passed gous to cases arising concerning wills. Each from the primary beneficiary to them. The claimant must prove his own chain of title representatives of the first beneficiary there but no more. The representatives of any fore succeed." But, it may be asked, why beneficiary that perished in the same disaster not construe this condition liberally, as in with the insured will fail. They will be un the will cases, so as to accomplish the gen able to prove the survival of the person eral intention of the insured apparent from through whom they claim. The first party the whole policy? This, it is believed, is impossible. First, granting that there is who can establish his own chain of title suc ceeds.3 of these a liberal construction was given to express con 1 2 M. & V. 894 (1837). z 3 Amer. & Eng. Ency. Law, 2nd. Ed. 990 ff. 3 Middeke v. Balder, 198 Ill. 590, 601. 64 N. E. IOO2 (1902); Supreme Council?•. Kacer, 96 Mo. Ap. 0.4,69 S.W. 671 (1902) semble; Southwell z;. (¡ray, 72 N. Y. Supp. 342 (1901); Screwmen's Association v. Whitridge. 95 Tex. 539,688. W-5OI (1902); Males?'. Wood men. 7o"S. W. 108 (Tex. Civ. Ap. 1902). In all but one
ditions in accordance with the principle of Y. W. C. Home v. French, sufra, though without much consider ation of thy difficult question of construction involved. See p. 242 n. I supra. 4 Amer. & Eng. Ency. I-aw, 2nd. Ed. 980 ff.
- Whether by assignment, will, or descent.
6 Cowman r. Rogers, 73 Md. 403, 21 At. 64 ( 1891 ); U. S. C. Co. i: Kacer, 169 Mo. 301, г, 6ç> S. W. 370 (1902).
