Non-receipt of tidings as raising preemption of death.

By the 18 & 19 Charles II. (Ruff. 19, Ch. II.) c. 6, s. 2, if a person for whose life an estate is granted goes abroad, and there is no sufficient evidence that he is alive, the Judge, in any action commenced for the recovery of the lands by the lessors or reversioners, shall direct the jury to give their verdict as if the person remaining abroad were dead: and by the 6 Anne, c. 72 (Ruff. c. 18), s. 1, a reversioner or remainderman may, by proceedings in Chancery, procure the production of tenant for life or cestui que vie,(m).

Proof of death of cestui que vie.

Production of cestui que tie.

As respects the time of death, the presumption, in cases of adverse claims to property, used to be that the absentee died at the end of the first seven years after he was last heard of; unless there were special circumstances for raising a prepresumption as to time of death.

(l) Bowden v. Henderson, (1854) 2 Sm. & G. 360; see Re Mileham, (1852) 15 Beav. 507; and Mullaly v. Walsh, (1872) 6 I. R. C. L. 314.

(m) Re Owen, (1878) 10 Ch. D. 166; 48 L. J. Ch. 248; Re Stevens, (1886) 31 Ch. D. 320; 55 L. J. Ch. 433; Re Pople, (1889) 40 Ch. D. 589; 58 L. J. Ch. 372; Seton, 7th ed. 1714.

Asumption, tantamount to proof, of death at an earlier period (n); the later authorities (o), however, in effect lay. down, first, that though a person who has not been heard of for seven years is presumed to be dead, yet, in the absence-of special circumstances, there is no presumption from that fact as to the particular period at which he died; secondly, that a person, alive at a certain period of time, is to be presumed to be alive at the expiration of any reasonable period afterwards; and thirdly, that the onus of proving death at any particular period within the seven years lies with the party alleging death at such particular period (p).

Presumptions, such as the above, however, would not necessarily be made as between vendor and purchaser (q); and the above cases must be considered as guides, rather than as authorities, for the conveyancer. The old presumption of death from absence, is, owing to the increased facilities of travelling, becoming daily more untenable (r). In one case, after absence and silence for nineteen years, the Court refused to presume death when the circumstances rendered it improbable that the party, if alive, would have communicated with her friends (s). ,The notorious litigation in respect to the Tichborne estates is suggestive of the difficulties which may affect a title which depends upon mere presumptive evidence of death.

Rules upon, as between adverse claimants, how far applicable as between vendor and purchaser.

(n) Webster v. Birchmore, (1807) 13 Ves. 362; Be Lyford's Tr., (1853) 17 Jur. 570; Sillick v. Booth, (1841) 1 Y. & C. C. C. 117; Ommaney v. Stilwell, (1856) 23 Beav. 328; 2 Jur. N. S. 1085; Be Cor-bishley's Tr., (1880) 14 Ch. D. 846; 49 L. J. Ch. 266; Hickman v-upsall, (1876) 4 Ch. D. 144; 46 L. J. Ch. 245; Dowley v. Winfield, (1844) 14 Si. 277; 8 Jur. 972; Cuthbert v. Furrier, (1847) 2 Ph. 199.

(o) Doe v. Nepean, (1833) 5 B. & Ad. 86; Nepean v. Doe d. Knight, (1837) 2 M. & W. 894, 912; Lamb v. Orton, (1859) 6 Jur. N. S. 61; 29 L. J. Ch. 286; Dunn v. Snowden, (1862) 2 Dr. & S. 201; 32 L. J. Ch. 104; Thomas v. T., (1864) 2 Dr. & S. 298; Be Phene's Tr., (1870) 5 Ch. 139; 39 L. J. Ch. 316; Be Lewes' Tr., (1871) 6 Ch. 356; 40 L. J. Ch. 602; Be Rhodes, (1887) 36 Oh. D. 586; Prudential Ass. Co. v. Edmonds, (1877) 2 A. C. 487, 509; Be Benjamin, 1902, 1 Ch. 723; 71 L. J. Ch. 319; Be Aldersey, 1905, 2 Ch. 181; Taylor, 11th cd. 192; and see An. Pr., notes to R. S. C, O. LV. r. 2 (1).

(p) See Be Benham's Tr., (1867) 4 Eq. 416, 419; 36 L. J. Ch. 502. Matins, V.-c, held the presumption to be that death did not take place until the expiration of the seven years; but this decision was overruled (see 5 Ch. 141, n.), on the ground (now the well-settled rule) that the time of death is a matter for affirmative proof. See cases cited in last note.

(q) See Sug. 14th ed. 48; and sup. p. 325.

(r) See Watson v. England, (1844) 14 Si. 28; 2 L. T. (O. S.) 453; Hemming v. Spiers, (1847) 15 Si. 550; 11 Jur. 294.

At Common Law there was no presumption of law arising from age or sex as to survivorship among persons who perished by the same casualty; nor, on the other hand, was there any presumption that they all died at the same moment, the question being one merely of fact, depending entirely upon the evidence; and if no evidence could bo adduced, the matter was treated as one incapable of being determined (t). The L. P. Act, 1925, however, provides (u) that in all cases where after the commencement of the Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court) for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

Presumption as to survivorship.

A person who has not been heard of for a period which raises the presumption of death, is not, without evidence, to be presumed to have died without issue (x). Although the failure of issue is a negative fact, it is necessary to establish facts raising a presumption of the want of issue. Such evidence may consist "either of the testimony of living witnesses having the means of knowledge (y), the declarations of deceased relatives, or family reputation otherwise established," and which appears to extend to indirect or circumstantial declarations (z), and (in conveyancing practice) to include declarations or affidavits by persons acquainted with, although not actually members of, the family (a); "or of facts or circumstances irreconcilable with, or opposed to, the hypothesis that there are any legitimate descendants of the supposed ancestor;" such as facts which tend to show the celibacy of the party (6); the non-mention of issue in wills (c) and other documents in which issue, if existing, would naturally be noticed; and the devolution of dignities or property upon the assumption of the want of issue; or the grant of letters of administration to distant relatives (d).