Burr v. Sim

The opinion of the Court was delivered by Gibson, C. J. — Not only convenience but necessity calls for a definite rule to produce certainty of result in the determination of facts which must be passed upon without proof; and such can be obtained only from the doctrine of presumptions, which, however arbitrary, is indispensable, and, when founded in the ordinary course of events, productive of results which usually accord with the truth. There is nothing so frequently unattended with the ordinary means of proof, and yet so essential to the determination of a right, as the time of an individual’s death. The common law soon had recourse to presumption for the continuance of life, by casting the proof of its cessation on him who alleged it; yet it must have been obvious that a counter-presumption of superior power, founded in experience of the ordinary duration of human existence, and leading to a certain conclusion of death, might be raised from lapse of time alone. The latter, however, would be but a natural presumption, producing, not constructive belief but actual conviction; and failing to apply its rule to cases without regard to circumstances, it would be inadequate to the necessities of legal adjudication. Sensible of this, the English judges provided for these necessities by limiting, in analogy to their statutes concerning leases and bigamy, the presumption of life to the period of seven years. These statutes are not in force here, nor have we any of our own which correspond to them: consequently the period assumed with us, must be an arbitrary one, just as is the period for the presumption of payment, which corresponds with the English statute of limitations, to bar an entry, instead of our own. The period assumed by the English judges, however, is a reasonable one, and we have been cautiously but constantly approaching it. That it had not already been arrived it, as in some of our sister states, by direct decision, is to be ascribed to the absence of a case which required it. Such a case now occurs; and the principle is to be considered as definitively settled. But the presumption of death, as a limitation of the presumption of life, must be taken to run exclusively from the termination of the — 171 — prescribed period; so that the person mus?be taken to have then been dead and not before. Indeed that is a necessary conclusion from viewing it, not merely as a limitation, but as a countervaling presumption, which, as it does not supplant its predecessor before the end of the period, assumes no more than that the individual and the period expired together; and the predecessor being still in force to rule the case in respect to the time covered by it, is sufficient to sustain an inference of intermediate existence throughout. Thus the presumption of life continues till it is-displaced by a more potent one, which, however, has no retroactive force; and indeed it would be of little use if it had, for to leave the time of the death still uncertain, would leave a perplexity which it was its purpose to remove. It is undoubtedly true that additional circumstances of probability, may justify a presumption that the death was still sooner; but these, where they operate, introduce a distinct and dissimilar principle. What seems to me to be a palpable error of Chief Justice Denman, in Knight v. Nepean, on the authority of which the -present case was ruled below, is the view he took of the presumption of death from the efflux of a definite period, as being, in some measure, a natural one operating within the period and in proportion to its tendency to produce actual belief, and not merely as an artificial one tending to the legal conclusion of a fact without the period, which independently of circumstances, a jury is bound to draw. A similar want of attention to its class, produced those loose and indeterminate dicta in regard to the presumption of payment from lapse of time, which were noticed in Henderson v. Lewis, (9 Serg. & Rawle, 384.) It certainly has not been expressly decided that the person must be taken to have lived throughout the period; but that conclusion inevitably -follows from the legal presumption of life, which though prospectively rebutted at a particular period, is sufficient to sustain the allegation of existence during the time it lasted. On the other hand, there is no precedent to the contrary; for the presumption In Watson v. King, which grew out of the probable fate of a missing ship, rested 'on circumstances very different from those which are usually connected with the probable fate of an absent individual. In / the case at bar therefore, we must say there was an error in leaving; the jury to presume the death to have been at an intermediate period, unless we discover in the case at least a spark of evidence that the individual was, at some particular date, in contact with a specific peril as a circumstance to quicken the operation of time. The circumstance relied on, is the departure of the individual by sea; but the perils of the sea are general, not specific; and they are not present but contingent. ■ They-are such as may or may not occur; but to accelerate the presumption from time, or more properly to turn it from an artificial into a natura.) one, it is necessary to bring the person within the range of a particular and an immediate danger —not such as is contingently incident, in some degree, to every — 172 — mode of conveyance. *A natural presumption arises only from a violent probability, because it is a conclusion drawn by experience from the usual current of things; but no violent probability of death arises from a peril, which, though possible, is remote.* All the examples put by the judge himself, are those of special perils which bear directly on the person with greater or less probability of its destruction in proportion to their urgency; and such was the nature of the probability in Watson v. King. Now there is no mode of conveyance which has not its perils;. and if the mere departure of a person not heard of during the period of legal presumption, were enough to warrant a natural presumption ofhis death within a more contracted one, the legal presumption, stript of its efficiency to dispose of the uncertainty it was introduced to remedy, would be deprived of the greater part of its value. We are of opinion, therefore, that though the exceptions to other parts of charge are not legitimate subjects of revision here, the direction that there was evidence from which the jury might infer the death to have been at a timejshort of the period of legal presumption, was erroneous. Judgment reversed and a venire de novo awarded.