It would seem that a policy may take effect, if the bargain be completely made, although before any delivery of it the life-insured has died, and delivery was withheld in consequence. It need not be added, that the evidence must be very clear, and the circumstances very strong, to give effect to such a policy. (f)
English life policies are sometimes made for a short time, -perhaps a single year, - with a right of renewal. In this country, such a provision is certainly not common. In an English case, where the original insurance for a year expired on the 24th of February, and the insured had the right of renewal for another year, and on the following 4th of May he died, and in ignorance of this fact application for a renewal was made by his representatives * and assented to by the insurers on the 31st of May, the insurers were held liable. (g) In the renewed insurance no time was stated for the beginning or the termination of the policy.
(f) The case of the Kentucky Mut. Ins. Co. v. Jenks, 5 Port (Ind.) 96. is of much interest on this subject. On the 27th of September, 1850, Jenks, of Lafayette Co., being then in good health, completed an application to the Kentucky Insurance Company for an insurance of $1,500 on his life, for the benefit of his wife. The company's agent at Lafayette on that day mailed the application to the company. The application was duly approved, and a policy was issued thereon and mailed to the agent on the 2d of October, 1850. It insured the life of J. in the sum of 1,500 dollars, for five years from date, for the benefit of his wife. The policy was received by the agent on the 5th of October, 1850. On the 29th September, 1850, J. was taken sick, and lingering until the 4th October following, died. On the receipt of the policy (J. being dead), the agent immediately returned it by mail to the company. While the treaty for insurance was pending, and before J.'s application was completed, the company agreed to take the first year's premium in an advertisement of their agency, for six months, in J.'s newspaper, at Lafayette; and accordingly the agent, in August, 1850; furnished to J. the advertisement, which was published in the paper continuously thereafter, as directed by the agent, for six months. The price of the advertisement fell short of the first year's premium 45 cents. This was a bill in chancery by J.'s widow, praying discovery of the entries upon the company's books, etc., and that the original application for the insurance, and the original policy issued thereon, should be produced, etc., that an account should be taken, etc., and for general relief. And it was held, that the contract of insurance was, at least, complete on the 2d of October, 1850, when J.'s application was approved, and the policy was mailed to him; and that there was weighty authority that the acceptance related back to the period when J. completed his application.
(g) Philadelphia Life Ins. Co. v. American Life Ins. Co. 23 Penn. State, 65. The second policy contained a statement, that, if the declaration made by the secretary of the company obtaining the reinsurance, was false, the policy should be void. This declaration stated, that the secretary believed the age of the life-insured did not exceed thirty years, and that "he is now in good health." This declaration was dated May 81. See also Foster v. Mentor Life Ass. Co. 3 Ellis & B. 48, 24 Eng. L. & Eq. 103.
All life policies are of course terminated by the death of the life-insured. But it is sometimes difficult to determine the time of his death, or whether he died while it covered his life or after it had expired. The burden of proof is necessarily upon the representatives of the insured, to show that the death occurred within the policy. (h) Undoubtedly, after a certain period of absence and silence, there arises, by the common law of England and of this country, a presumption of death; or, to speak more accurately, the presumption of life ceases. This period is very generally said to be seven years; (i) 1 and this is adopted in the legislation of some States. (j) It must remain true, however, that when a party rests his case upon the fact of death, he must satisfy the jury of that fact by relevant and admissible evidence, strengthened by whatever presumptions the law would make; and we should have no doubt that proof as to the health and strength or habits of the person, or his probable place, or exposure to peril, would come in as a part of this evidence.
The presumption of life after seven years of absence and silence, * ceases, but it is not replaced by a presumption that death occurred at any one time more than another. It has been said that the presumption of life continues to the end of seven years, and then only gives way to a presumption of death; and that this is therefore a presumption of death at the end
(h) See Lockyer v. Offley, 1 T. R. 260, of this period. (i) We think the rule must be, that if a plaintiff's case depends upon a certain time within the seven years, he must make out his case by proof attaching to that time; and as Lord Denman has said, "Of all the points of time the last day is the most improbable, and most inconsistent with the ground of presuming the fact of his death." (l)
(i) In Loring v. Steineman, 1 Met. 211, Shaw, C. J., said: "The only remaining question is a question of fact upon the evidence. It is a well-settled rule of law, that upon a person's leaving his usual home and place of residence for temporary purposes of business or pleasure, and not being heard of, or known to be living, for the term of seven years, the presumption of life then ceases, and that of his death arises. 2 Stark. Ev. 457; Doe v. Jesson, 6 East, 85. But this presumption may be rebutted by counter-evidence, Hopewell v. De Pinna, 2 Camp. 113 ; or by a conflicting presumption, The King v. Twyning, 2 B. & Ald. 386. This presumption is greatly strengthened, when the departure of an individual was from his native place, the seat of his ancestors, and the home of his brothers and sisters and family connections; and still further, where it was to enter upon the perilous employment of a seafaring life; and when he has not been heard of, by those who would be most likely to know of him, for upwards of thirty years." See also McCartee v. Camel, 1 Barb. Ch. 455; Smith v. Knowlton, 11 N. H. 196; Cofer v. Flanagan, 1 Kelly, 538. This presumption does not arise where the party, when last heard from, had a fixed and known residence in a foreign country. McCartee v. Camel, supra; In re Creed, 1 Drury, Ch. 235. (j) See 2 N. Y. Rev. Stats. c 34, § 6.
1 See Hancock v. American Ins. Co. 62 Mo. 26; Tisdale v. Conn. Ins. Co. 26 la. 170. A person who for seven years has not been heard of by those who, had he been alive, would naturally have heard of him, is presumed to be dead; but the law raises no presumption as to the precise time of his death. Davie v. Briggs, 97 U. S. 628.
By the civil law, where two persons perish by the same calamity, there are certain presumptions, based upon the age and sex of the parties, as to which survived the other. But these presumptions have not been adopted in England and this country. (m)
Notice and proof of the death would be sufficient to establish a claim on the insurers. And although the insurers have a usage in this respect, it is not binding unless it was known to the insured, and by-laws respecting it can have no effect unless they form a part of the policy. (n) l
(k) Smith v. Knowlton, 11 N. H. 196; Burr v. Sim, 4 Whart. 150; Bradley v. Bradley, id. 173; Tilly v. Tilly, 2 Bland, Ch. 445.
(l) In Knight v. Nepean, 5 B. & Ad. 86, 2 M. & W. 894, 913. See also The King v. Harborne, 2 A. & E. 540; In re Creed, 1 Drury, Ch. 235. The English doctrine is held in New York. McCartee v. Camel, 1 Barb. Ch. 462. See also Patterson v. Black, Park on Ins. 579 (6th ed.).
(m) See 1 Greenl. Ev. § 29. In Rex v. Hay, 1 W. Bl. 640, where a man, his wife and daughter, set sail in a vessel which was never heard of afterwards, and it became important to ascertain which perished last, a compromise was effected on the recommendation of Lord Mansfield, who said there was no legal principle on which he could decide the case. 2 Phillim. 268, n. See also Mason v. Mason, 1 Meriv. 308. In some cases, the comparative age, health, strength and experience of the parties, have been regarded as sufficient to furnish presumptions of survivorship. Sillick v. Booth, 1 Younge & C. Ch. 121; Cove v. Leach, 8 Met. 375. And where these furnish no decisive tests, the presumption that both died at the same time has been adopted. Taylor v. Diplock, 2 Phillim. 261; Selwyn's Case, 3 Hagg. Ec. 748; Cove v. Leach, 8 Met. 371; Moehring v. Mitchell, 1 Barb. Ch. 264. But by this is meant probably no more than that, as it is impossible to say which of two persons died first, the effect is the same as if they had died together. And then the party on whom is the burden of proof, of course fails. Underwood v. Wing, 4 De G., M. & G. 633, 31 Eng. L. & Eq. 293; Wing v. Angrave, 8H.L. Cas. 183.
(n) Taylor v. AEtna Life Ins. Co. 13 Gray, 434. In this case it was held, that, in the absence of such usage known to the insured, a physician's certificate of the death was not an essential part of the proof.
1 Mere notice, unobjected to before trial, is sufficient Heath v. Franklin Ins. Co. 1 Cush. 257. Contra, O'Reilly v. Guardian Ins. Co. 60 N. Y. 169. Probate records and inquests are but prima facie evidence of death. Mut. Ben. Ins. Co. v. Tisdale, 91 U. S. 238; Mutual Ins. Co. v. Schmidt (Ohio), 8 Am. L. Rec. 629.