716
THE GREEN BAG
Now as to decisions holding that the presumption of death was strong enough as not to render title unmarketable, and first, the very interesting case of Ferry v. Samp son.1 In that case objection to title had been made "on the ground that Robert Waite Armstrong, the devisee of the premises under the will of his father, was not shown to be dead, or if dead that it was not shown that he died intestate, or leaving no widow or issue surviving." In 1842, and nine years after proof of the will of his father, Robert Waite Armstrong, being then un married, and about 20 or 21 years of age, left his home in New York City. He returned the same year for a visit, and went away again, and in 1846 wrote his mother from Missouri, that he was on his way home via New Orleans. Nothing was heard from him subsequently. Fruitless attempts to locate him were made, and it was generally believed by his relatives and friends that he was dead. This action was brought fortyone years after his disappearance. As to this matter the court said : "The presumption of the death of Robert "Waite Armstrong, intestate and without leaving a widow or children surviving, is, upon the facts disclosed, very strong, amounting to scarcely less than certainty. It cannot be doubted that he knew of the devise to him in his father's will. He was a necessary party to the probate. In 1842 he was, as one witness testifies, about 25 years of age, and when here at that time it is extremely improbable that he did not learn of the provisions in his father's will, if he did not know of them before. The presumption of his death does not depend simply upon the lapse of time. It is enforced by the fact that he had a valuable interest in property which, if living, he would, according to common experience, have long since asserted and claimed. But for forty years it has been in the undisputed possession of his mother and his collateral kindred, claiming 1112 N. Y. 415, 20 N. E. 387.
by descent from him. Meanwhile, neither Robert Waite Armstrong, nor any one claiming to be his widow or issue, has given the least sign. It is scarcely conceivable that, if he had wife or children, he would not have informed them of this inheritance. . . . "We think the circumstances in this case point unequivocally to the death of Robert Waite Armstrong long before the sale in partition, leaving no widow or children surviving, and that it is beyond reasonable doubt that his title passed by his death to his mother, and his brothers and sisters, and their descendants. Judge Denio had occasion to consider a somewhat similar question in Re Protestant Scliool, 31 N. Y. 587, 588; and Chancellor Kent, in McContb v. Wright, 5 Johns. Ch. 263, enforced specific performance of a contract for the sale of land on the presumption of death without issue of John Ogilvie, an absentee for 'over forty years. ' On the whole, we think the objection of the purchaser was untenable, and that, according to the rules of equity applied in such cases, he ought not to have been released from his purchase." An earlier New York case, and one referred to in the above quotation, is that of McComb v. Wright.1 The facts in that case were as follows : One Alexander Ogilvie, by his will, dated January 21, 1748, devised all his property to his wife for her life and then to his five children, naming them, as joint heirs. Two of them, subsequently, by deed, which recited the death of a sister, conveyed their interest to a fourth. In 181 5 the grantee died, and his executor sold the land in question in January, 18 19, to the defendant, who refused to take the title offered because of the outstanding interest of the fifth child, and also of the one alleged to have died. An action for specific per formance was brought. It was shown that those long acquainted with the family had never heard of the child alleged to have died. As to the fifth, it was shown that he had gone
