Hitz v. Ahlgren

Mr. Chief Justice Phillips delivered the opinion of the court: The principal question presented by this record is whether or not there was such a legal presumption of the death of John Phalen, the former owner of this lot, as would entitle his heirs to make conveyances of the property. The rule in this State is, that the absence of a person for seven years from his usual place of abode or resort, and of whom no account can be given and from whom no intelligence has been received within that time, raises the presumption that he is dead. (Whiting v. Nicoll, 46 Ill. 230.) In this case it does not appear that the usual place of residence of John Phalen was in Chicago. He was a' horse-shoer by trade, and had resided in the Indian Territory a number of years; had engaged in working at his ■trade in the army through the war; had lived in New Orleans, and, as probably shown by the testimony, also in St. Louis. The mere facts that he was absent from Chicago, and that one relative living in Chicago, who could neither read, write nor carry on a correspondence, had received no letters from him, were not sufficient, under the law, to raise the presumption of his death. It does not appear from this evidence that other brothers and sisters were not in correspondence with him, nor does it appear that he was absent from the place where he had lived in St. Louis or in the Indian Territory. It is only attempted to be shown by the deposition introduced after the first decree of the court was rendered, that he could not be found in New Orleans. In order to enforce the presumption of death of a person after an absence of seven years, there must be evidence of diligent inquiry at the person’s last place of residence, and among his relatives, and any others who probably would have heard from him, if living. (Hancock v. American Life Ins. Co. 62 Mo. 26; 2 Greenleaf on Evidence, (15th ed.) sec. 278f; Wentworth v. Wentworth, 71 Me. 72; Bailey v. Bailey, 36 Mich. 182; Whiting v. Nicoll, supra.) Long absence alone, no matter how long continued, is not sufficient to raise the presumption of death. There must be shown an absence of seven years or more from the established residence- of the party, before the presumption of death can be raised. (Stinchfield v. Emerson, 52 Me. 465.) There is in most States an almost entire uniformity of authority on this question. We hold, therefore, that mere absence of a person from a place where his relatives reside, but which is not his own residence, and mere failure on the part of his relatives to receive letters from him for a period of seven years, are not of themselves sufficient to raise a presumption of death. The absence must be from his usual place of abode or resort. In this case the trial court heard the evidence in open court, and had a better opportunity to judge of the credibility of the witnesses. The finding" of the trial court in a case of this kind is entitled to great weight, and to authorize a reversal it must appear there was error of fact in its finding, and that such error was clear and palpable. Coari v. Olsen, 91 Ill. 273; Baker v. Rockabrand, 118 id. 365; Johnson v. Johnson, 125 id. 510; Voss v. Venn, 132 id. 14; Kusch v. Kusch, 143 id. 353; Allen v. Hickey, 158 id. 362; Ellis v. Ward, 137 id. 509. There is no cause shown by this record why the decree of the Superior Court of Cook county should be reversed, and it is affirmed. Decree affirmed.