Francis v. Francis

Death — Presumption of death from absence — Domicile. A presumption of death is raised by the absence of a person from his last place of domicile unheard of for seven years. When a person removes from his domicile in this state to establish a home for himself in another state or country, at a place well known, this is a change of residence, and absence from this domicile unheard of for seven years is the absence upon which the presumption of death must be built. If alive when last heard from at his new domicile the presumption is that life continues.

Appeal, No. 576, Jan. T., 1896, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1896, No. 300, on verdict for defendants. Issue devisavit vel non. Rachel Francis died in April, 1895, leaving an alleged will which was probated by the register of Lackawanna county and letters testamentary granted. Then the petition of Evan M. Francis was presented to the register, and a citation was issued to the parties interested to show cause why the probate should not be stricken off and the letters vacated. A hearing was had, and the probate sustained. An appeal was taken to the orphans’ court, and an issue was framed by the court -as follows: first, at the time tins will was signed, to wit: June 14, 1884, was Rachel Francis a single woman? second, did Rachel Francis, after she signed the will, contract a lawful marriage with John Williams ? This issue was certified ’ into the court of common pleas for trial. At the trial the plaintiff alleged that Rachel Francis was lawfully married to John Williams about Christmas, 1886. This marriage was proved by reputation and cohabitation. The plaintiff contended that this marriage revoked the prior will. The defendants alleged that Rachel Francis was married to Thomas Watkins in November, 1870, and also alleged that he was living in Patagonia, South America, in July, 1896. The plaintiff also alleged that, as no competent evidence was offered by tbe defendants that Thomas Watkins was the Thomas Watkins who was alleged to have married Rachel Francis in November, 1870, or that he was living at any time since May, 1876, it must be presumed that he was dead after seven years from that date, to wit: May, 1883, until the contrary was shown by competent proof. Plaintiff’s points and answers thereto among others were as follows: 3. A person shown not to have been heard of for seven years by those who, if he had been alive, would naturally have heard of him, is presumed to be dead, and the burden of proof is upon those who deny the death. Answer: I affirm that proposition as an abstract proposition of law, but it must be considered with reference to the domicile or permanent home of the absent party. A man may leave his home and be absent from that home, but if he establishes a home in another community or countr]'-, and that becomes his permanent home, it cannot be said that he is absent from his known domicile. [1] 4. The presumption of death arising from the absence of the person for seven years unheard from stands as competent and satisfactory proof until it is successfully rebutted by competent evidence to the contrary. Answer: I affirm that proposition. Of course, if this man Watkins had left Providence, left his home, without saying where he was going, or if he had left his home on a business trip or pleasure trip, and nothing had been heard of him for the period of seven years, then the presumption would arise that he was dead. But if he went away for the purpose of establishing a permanent home somewhere else, and he was known to be alive there, then the presumption would not arise until he would be absent from that home and unheard of there. The jury found the following special verdict: Rachel Francis, testatrix, was a married woman at the time of the execution of the will in question, to wit: on June 14, 1884; she had been previously married to Thomas Watkins, and Thomas Watkins was still alive at the time of the alleged marriage to John Williams. Rachel Francis, aftet the execution of the said will, was not lawfully married with John Williams. Judgment was entered upon the verdict. Errors assigned among others were (1, 2) above instructions, quoting them. A person is presumed to be dead after the lapse of seven years from the time he was last actually heard of: Burr v. Sim, 4 Wharton, 150; Bradley v. Bradley, 4 Wh. 173; Whiteside’s App., 23 Pa. 114; Esterly’s App., 109 Pa. 229 ; Welch’s App., 126 Pa. 297. The presumption of death arising from the absence of the person for seven years unheard from stands as competent proof until it is successfully rebutted by competent and satisfactory evidence to the contrary: Thomas v. Thomas, 124 Pa. 646; -Schoneman’s App., 174 Pa. 1; 1 Am. & Eng. Ency. of Law, 41; Wambaugh v. Schenck, 2 N. J. L. 229; Smith v. Smith, 5 N. J. Eq. 484; Hoyt v. Newbold, 45 N. J. L. 219; 1 Greenleaf on Ev., 57; Act of June 24, 1885, P. L. 155. cited : Thomas v. Thomas, 124 Pa. 646.