McLean v. A. O. U. W. Grand Lodge

*18 POLLEY, P. J. This action is brought to recover on a policy of life insurance in which plaintiff is named as beneficiary. Among other defenses set up in the answer is the contention by defendant that there is no sufficient evidence to show that the insured is dead. There is no positive proof of the death of insured, but plaintiff is relying on the presumption of death arising from the fact that the insured has been absent from home and unheard from for a period of seven years. To support this presumption plaintiff proved that the insured left his home in this state during the month of February, 1907, and went to Clarks, Neb., to visit his mother and attend to some business in connection with his father’s estate. While he did not remain there constantly, he was there until as late as the month of June, 1907. He wrote to his wife, the plaintiff in this action, occasionally until some time during the month of June, 1907, when he wrote to his wife, stating that he had completed 'his business in Nebraska, that he intended to start home immediately, and would probably be home by the time the letter reached there. This is the last that was ever heard from him, either directly or indirectly, by his wife. Extensive and diligent endeavor was made to ascertain his whereabouts, if alive, but without success. After waiting for a periof of 16 years, plaintiff came to the conclusion that the insured was dead, and filed her claim against the defendant under the terms of the policy. Such claim was rejected, and this action was commenced during the month of December, 1923. The case was tried to the court. Findings of fact, conclusions of law, and judgment were for plaintiff, and from such judgment and order denying a new trial defendant appeals. Whether the trial court believed the insured to be dead at the time of the commencement of the action we do not know, and whether the evidence in the record is sufficient to support a finding to that effect we express no opinion. The court refrained from finding that the insured was dead, but made the following finding of fact: “That from.and after the month of June, 1907, said Everett E. McLean was never again heard of or seen by either the plaintiff or. his mother and brother.” And upon this finding of fact the court made the foliowing conclusion of law: “That the said Everett E. McLean is by presumption of law dead, and the cause of action accrued in favor of plaintiff and against the defendant on or about the 20th day of December, 1923.” *19 This finding and concldusion are based on the theory that the presumption of death after seven years’ unexplained absence prevails as a matter of law- as a part of the law of this state, and whether such presumption does prevail in this state is the only question in this case that merits consideration. Section 2729, Rev. 'Code 1919, reads' as follows: “If any person, upon whose life any estate in real property depends, remains without the United States, or absents himself in the state or elsewhere, for seven years together, such person must be accounted naturally dead, in any action or special proceeding concerning any such property in which his death shall come in question, unless sufficient proof be made in such case of the life of such person.” This section applies only in certain cases involving the title to real property, but, so far as we know, is the only statute that authorizes a presumption of death from seven years’ unexplained absence; so that, if there is such presumption, as contended for by respondent, it must be found in the common law; and it is the contention of respondent that under the common law such presumption exists. This contention is based upon the following statement by Greenleaf: “But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.” 1 Greenleaf, Ev. § 41. He cites Stephen’s Digest Ev. art. 99, which reads as follows: “A person shown not to have been heard from for seven years by those, if any, who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.” This is very different from the rule as stated by Greenleaf. As stated by Greenleaf, there is a presumption of law that a person who has been absent and unheard from for seven years is dead; while as stated by Stephen, the presumption is one of fact to be deduced from the circumstances of the case. To quote from Egger v. Insurance Co. (Wis.) 234 N. W. 328, 329, “As stated by Stephen, the rule has the support of reason; as stated by Greenleaf, it does not.” That the rule as stated by Greenleaf has been followed by some courts cannot be denied. Ewing v. Metropolitan Life Ins. Co., 191 Wis. 299, 210 N. W. 819, 820. In this case it is said that “the rule is satisfied by a lack of intelligence or tidings for seven years, even if a reason for the absence is shown. * * * *20 In our state, pláintiff need show no diligent search. It is enough that he shows absence and lack of intelligence for seven years.” But this'rule was repudiated by 'the same court in Hansen v. Central Verein, .198 Wis. 140, 223 N. W. 571, 64 A. E. R.. 1284. And in Egger v. Insurance Co., supra, it is said: “The contention upon the facts involved in that case [Hansen v. Central-Verein], that the absentee should be held as a matter of law to be dead because his family had not heard1 from him for more than seven years, was a challenge to reason and common sense. The absentee had deserted his family, and he was under sentence for abandonment as the result of a prosecution instituted by his own family. It seemed unlikely that he would have written to them under the circumstances, and a presumption of his death because his family had not heard from him for a period of seven years rested upon rather frail support in reason.” It was found .necessary at an early date in England in cases involving life estates and reversions to establish a-n arbitrary rule whereby a person who had been absent and unheard from for a certain length of time would be presumed to be dead. This was done by statute 19 Car. II, c. 6 (1667), and the period fixed was seven years. This statute is still in force, and has been enacted into law by statutes of the various states, and is found in. section 2729, Rev. Code 1919, above quoted. But, so far as we know, no such general statute was ever enacted in England or in any of the states. The better rule, and the rule that seems to be generally recognized, is that the question whether a particular person is dead or alive is a question of fact to be determined from the evidence and) all the circumstances pertinent to the case. In re Board of Education of City of New York, 173 N. Y. 321, 66 N. E. 11; Jones on Ev. § 61 (2d Ed.); Best on Ev. §§ 408, 409. In Egger v. Ins. Co., supra, it is said: “Upon reflection, the result appears to be the same for practical purposes whether we say that no presumption arises except in cases of unambiguous circumstances or whether we say that the presumption varies in weight according to the circumstances. In either event, a question for the jury seems to be recognized by all courts, and it is for the jury to determine under all the circumstances whether the absent one is dead or alive. Where the circumstances are unambiguous, and there is no way to account for *21 the absent one not having been heard of without assuming his death, then the presumption is conclusive of his death. Where the circumstances of his leaving are ambiguous and cast doubt upon the probability of his communicating with him family even though he be alive, then it is for the jury to say whether under the circumstances he would naturally communicate with his family, relatives, or friends if he were alive. “In the one view, the jury is to determine whether the presumption prevails. In the other, it is for them to determine whether under all the facts and circumstances the absent one is dead or alive. No matter what the philosophic reasoning may be the result is the same, in that a jury question is presented.” The court erred in holding that the insured was presumed to be dead as a matter of law, but should have determined the matter as a question of fact upon the evidence and circumstances in the case. The judgment and order appealed from are reversed. CAMPBELL, ROBERTS, and' RUDOLPH, JJ., concur.