Hayes v. Berwick

By the Court. What we call the Civil Code, is but adigest of the civil law, which regulated this country under the French and Spanish monarchs. It is true, some new principles have been intercalated, and others abrogated or omitted. By a maxim, consecrated by the best authorities, every absentee, whose death is not clearly and precisely established, is presumed to live until the age of one hundred years; that is to say, the most remote period of the ordinary life of man. 1 Deni-sart 13, Verbo Absens. An absentee is presumed to live till the contrary is proved: otherwise the absence must be such, that the life of a man, who may live one [141] hundred years, should be presumed to have ended. 1 Ferriere 13, Verbo Absens. Death is never presumed from absence; therefore, he who claims an estate, on account of a man's death, is always held to prove it. An absentee is always reputed living, until his death be proved-or until one hundred years have elapsed since his birth. 2 Ferriere, 226, Verbo Mort. Although a man be absent, and there be no account of him, his death is not to be presumed: they do not proceed to the division of his estate, for he is oresunied to live one hundred years, 2 Pigeau, 2. These principles are drawn from the Roman law. Placuit centum annos tuendos esse muni-cipes, quia is finis Vitae longaevi humanis est. ff lib. 7, tit. 1, b. 56. Centos annos observanclos esse constat, qui finis vitae longissimum est. Id. lil. 33, tit. 2, l. 8. Non aliter actionem fini-ri concedimus, nisi centuin annorum curricula ex-cesserint, nisi centum annorum curricula ex-annorum spatium longissimae vitae in homine esse refert. Plin. 11, c. 37, Varro 5. Evidence rejected.