King's Bench, affirmed the doctrine there laid down, " that where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or end of any particular period during those seven years; that if it be important to any person to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was heard of. The presumption of law relates only to the fact of death; the time of death, whenever it is material, must be a subject of distinct proof." (Nepean v. Doe d. Knight, 2 Mees. & W. 894. See Doe d. Knight v. Nepean, 5 B. & Ad. 86; 2 Nev. & M. 219; Rex v. Inhabitants of Harbourne, 2 Ad. & Ell. 540; 4 Nev. & M. 341; Rex v. Twyning, 2 B. & Ald. 386.) It was held in a series of cases that when a person had not been heard of for seven years, he must be taken to have lived to the end of the seven years; and that those who alleged his death within that period were bound to prove the fact. (Lambe v. Orton, 8 W. R. 111; Dunn v. Snowden, 2 Dr. & Sm. 201; Thomas v. Thomas, ib. 298; Re Benham's Trusts, L. R., 4 Eq. 416.) But these cases have been overruled, and it is now settled, that if a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence. And the onus of proving that the person survived any particular period within the seven years lies upon those who claim a right, to the establishment of which that fact is essential. (Re Phene's Trusts, L. R., 5 Ch. 139, where the cases are collected.) 3 & 4 Will. 4, c. 27, s. 16. Where, accordingly, a legatee has not been heard of for seven years, his Presumption as to death will be presumed, and the onus of proving that he survived the tes- death of legatee. tator lies upon those who claim under him. In the absence of such proof the legacy will be paid to the residuary legatee, or the next of kin of the testator. (Re Lewes' Trusts, L. R., 6 Ch. 356; Re Walker, L. R., 7 Ch. 120.) Where a testator died in 1829, leaving a will in favour of his children, one of whom went abroad in 1809, and had not been heard of since 1815; both before and after the testator's death endeavours were made, by inquiries and advertisements, to ascertain whether such child were living or dead, but without success: it was held, that he must be presumed to have died before the date of the will. (Rust v. Baker, 8 Sim. 443.) The death of a legatee has been presumed from twenty-five years' absence abroad without being heard of. (Dixon v. Dixon, 3 Br. C. Č. 510.) On a reference to the master to inquire whether a legatee was living or dead, the certificate of the master, stating that the legatee had been abroad twenty-eight years, and not been heard of for twenty-seven years, and his opinion that he died in the lifetime of the testator, was the foundation of a decree. (Lee v. Willock, 6 Ves. 606; Reg. lib. 1791, fol. 315. See also 13 Ves. 362.) A. went abroad in September, 1830. His father died in September, 1833. Security to refund. About twenty months previous to that time A. was heard of for the last time. The court ordered the share of the father's residue bequeathed to A. to be transferred to his brother, as the sole next of kin of the father living at the father's death, on the brother giving security to refund it, in case A. should be living, or should have died after his father. (Dowling v. Winfield, 14 Sim. 277.) A sum of money was set apart, in 1815, to answer an annuity to a woman then supposed to be resident in India, but who was never afterwards heard of. In 1837, the master having certified, upon presumption that she was dead, but without finding when she died, the court ordered payment of the principal money to the party entitled to it, subject to the annuity. In 1842, the master having certified, upon presumption, that she had died in 1822, and that no personal representative had been heard of, the court ordered immediate payment to the same party of the accumulation since that time. And, in 1847, it ordered payment of the rest of the fund to the same party, though resident abroad, upon his giving his personal security to refund, in case the annuitant, or her personal repre 3 & 4 Will. 4, sentative, should ever establish a claim. (Cuthbert v. Purrier, 2 Ph. C. C. c. 27, s. 16. 199.) Effect of other circumstances. Presumption of survivorship. Where two persons die by same calamity. In establishing a title upon a pedigree, where it may be necessary to throw a branch of the family out of the case, it is sufficient to show that the person has not been heard of for many years, to put the opposite party upon proof that he still exists. What is done on such a trial is no injury to the man or his issue, if he should afterwards appear and claim the estate. (Rowe v. Hasland, 1 W. Bl. 404. See Fitz. Ñ. B. 196, A. L.) Proof by one of a family, that many years before a younger brother of the person last seised had gone abroad, and that the repute of the family was that he had died there, and that the witness had never heard in the family of his having been married, is primâ facie evidence of his death without issue to entitle the next claimant by descent to recover in ejectment. (Doe d. Banning v. Griffin, 15 East, 293.) As to pleading, see Dayrell v. Hoare, 4 Per. & Dav. 114; Fryer v. Coombs, 4 Per. & Dav. 120; 11 Ad. & Ell. 40. Where the husband of a party had, seven years before her death, left this country for America, and had not been heard of since three days after his arrival there, although he had been advertised for in that country, the husband's death was presumed, and probate was granted of his wife's will as if she had died a widow. (Re bonis How, 1 Sw. & T. 53; 4 Jur., N. S. 366.) As to presuming the death of parties who embarked in vessels lost at sea or not afterwards heard of, see In bonis Norris, 1 Sw. & T. 6; 27 L. J., Prob. 4; In bonis Main, 1 Sw. & T. 11; 27 L. J., Prob. 5; In bonis Smyth, 28 L. J., Prob. 1. A person ought not to be presumed to be dead from the fact of his not having been heard of for seven years, if the other circumstances of the case render it probable that he would not be heard of though alive. The old law relating to presumption of death is daily becoming more untenable, in consequence of the increased facility of travelling. (Watson v. England, 14 Sim. 28.) A reference was made to the master, to inquire whether A. B. was living or dead. He reported certain facts and findings on stated evidence, showing that, after diligent inquiry, nothing had been heard of A. B. for more than seven years; and he found that he was not able to state to the court whether A. B. was living or dead. On a petition to confirm the report, the court read and considered the evidence, and came to a conclusion presuming the death. (Grissall v. Stelfax, 9 Jur. 890. See Wilcox v. Purchase, Ib.) The presumption of death, after seven years' absence, does not arise where the probability of intelligence is rebutted by circumstances. (Bowden v. Henderson, 2 Sm. & Giff. 360; and see M'Mahon v. M'Elroy, I. R., 5 Eq. 1.) In Webster v. Birchmore (13 Ves. 362), the presumption of death from length of time was held to have relation to the commencement of the period of uncertainty as to the existence of the party when he was proved to have been in a desperate state of health, and was to have returned to his relation in six months. In Sillick v. Booth (1 Y. & Coll. N. C. 117), a party was presumed to have died at a particular time within the seven years after he had been last heard of, the particular time being the hurricane months, and the party having sailed from Demerara before the expiration of such hurricane months. See also, as to the effect of circumstances in supporting a presumption of death at a particular period within seven years, Re Beasney's Trusts, L. R., 7 Eq. 498. A young sailor, who was last seen in the summer of 1840 going to Portsmouth to embark, was presumed to have survived his grandmother, who died in March, 1841. (Re Tindall, 30 Beav. 151.) A son, first tenant in tail in remainder, left this country on the 11th April, 1858, and was never afterwards heard of. His father, tenant for life, died on the 30th May, 1858. Held, in 1872, that it should be presumed that the son survived the father. (Pennefather v. Pennefather, I. R., 6 Eq. 171. See Lakin v. Lakin, 34 Beav. 443.) Where husband and wife are drowned by the same accident, the presumption is that they died at the same time, and in order to entitle the next of kin of the husband to the wife's property, it must be shown that he survived his wife. (Satterthwaite v. Powell, 1 Curt. 705.) In Sillick v. Booth (1 Y. & Coll. C. C. 117), it was held that evidence of health, strength, age or other circumstances might be given in cases of the above nature, tending to the judicial presumption that one of two brothers who perished by shipwreck survived the other. But this case has been doubted. (1 Taylor on Evidence, 203.) The testator and his wife were shipwrecked and drowned at sea, one wave sweeping both of them together into the water, after which they were never seen again; a question was raised between the next of kin of the testator and a legatee under the will, which was dependent on the event of the testator's surviving his wife: it was held, first, that the onus of proof, that the husband was the survivor, was upon the legatee; secondly, that it was requisite to produce positive evidence in order to enable the court to pronounce in favour of the survivorship; and thirdly, that no such evidence having been produced, the next of kin was entitled. (Underwood v. Wing, 4 De G., M. & G. 631; 1 Jur., N. S. 169; 24 Law J., Ch. 293.) By the law of England the question of survivorship, in cases of the above description, is matter of evidence, and not of positive regulation and enactment (varying according to the ages and sex of the persons dying in the same shipwreck), as it is in the French Code, and in the absence of evidence there is no conclusion of law on the subject. (Ib.) There is no presumption of law arising from age and sex as to survivorship among persons whose death is occasioned by one and the same cause. Nor is there any presumption of law that all died at the same time. The question is one of fact, depending wholly upon evidence: and if the evidence does not establish the survivorship of any one, the law will treat it as a matter incapable of being determined. (Wing v. Angrave, 8 H. L. C. 183. See further, Gen. Stanwix's case, Fearne's Post. Works, 38; Rex v. Dr. Hay, 1 Wm. Bl. 640; Swinburn, part 7, s. 33; Wright v. Netherwood, 2 Salk. 593, n.; Hitchcock v. Beardsley, West's Rep. t. Hardwicke, 445; Bradshaw v. Toulmin, 2 Dick. 633; Mason v. Mason, 1 Mer. 308; Taylor v. Diplock, 2 Phill. Ecc. C. 261; In bonis Selwyn, 3 Hagg. Ecc. R. 741; Colvin v. The King's Proctor, 1 Hagg. Ecc. 92.) Extreme Period of Limitation fixed. 17. Provided nevertheless, and be it further enacted, that no entry, distress or action shall be made or brought by any person who, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such forty years, or although the term of ten years, from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired (k). (k) The period for which a good title is required to be shown is still sixty years, notwithstanding the stat. 3 & 4 Will. 4, c. 27. Lord Lyndhurst, C., said, "It was supposed that, by the operation of that act, it was not necessary that the title should be carried back, as formerly, to a period of sixty years, but that some shorter period would be proper. It appears that conveyancers have entertained different opinions on the subject; but, after considering it, I am of opinion, that the statute does not introduce any new rule in this respect; and that to introduce any new rule shortening the period would affect the security of titles. One ground of the rule was 3 & 4 Will. 4, c. 27, s. 16. But no action, &c. shall be brought beyond forty years after the right of action accrued. A purchaser entitled to evidence of sixty years' title. 3 & 4 Will. 4, c. 27, s. 17. Where husband and wife abandon possession of wife's property. Where husband purports to convey wife's property by a conveyance which does not bind her. the duration of human life, and that is not affected by the statute. It was true that, in other respects, the security of a sixty years' title is better now than it was before; but I think that it is not a sufficient reason for shortening the period-for adopting forty years, or, as it has been suggested by a high authority, fifty years, instead of the sixty. I think the rule ought to remain as it is, and that it would be dangerous to make any alteration." (Cooper v. Emery, 1 Phill. C. C. 388. See the remarks of Lord Campbell in Moulton v. Edmonds, 1 De G, F. & J. 250.) A feme sole seised in fee married, and she and her husband ceased to be in the possession or enjoyment of the land, and went to reside at a distance from it. They both died at times which were not shown to be within forty years from their ceasing to occupy. The wife's heir-at-law brought ejectment against the person in possession within twenty years of the husband's death, and within five years of the passing of this statute, but more than forty years after the husband and wife ceased to occupy: it was held, that the heir-at-law was barred by the 17th section of the statute, though it did not appear when or how the defendant came into possession, and though proof was offered that the wife had levied no fine. (Doe d. Corbyn v. Bramston, 3 Ad. & Ell. 63; S. C. nom. Doe d. Corbyn v. Branson, 4 Nev. & M. 664.) There is a material distinction between the case of a husband and wife making the possession derelict as was the case in Doe v. Bramston, and the case where the husband and wife are seised in fee in right of the wife, and the husband, by a conveyance which does not bind the wife, purports to convey the fee. Because the effect at law is, that such conveyance merely passes to the grantee of the husband that estate which he had and might have held during the continuance of the coverture. In such case the right of the wife comes within the fourth description of interest in the 3rd section of the stat. 3 & 4 Will. 4, c. 27. If husband and wife, being seised in fee in right of the wife, convey to a purchaser by deed without fine, the wife, if she survives, and if not her heir, may, on the husband's death, recover the land, notwithstanding the purchaser may have been in possession for more than forty years. (Jumpsen v. Pitchers, 13 Sim. 327.) In 1787, a lease was made by a lunatic to his brother for lives renewable for ever. The lessee, who was the last life in that lease, died in 1836. Various proceedings were had in the lunacy matter respecting the lease and the rent reserved thereby, the result of which was that, without recognizing the lease as a valid demise, the lessee was permitted to hold part of the lands demised, paying the entire reserved rent. From 1836 to 1842 the profits were received by the heir of the lessce. In 1842 the lessor died, and the fee descended upon the heir of the lessee, who was also heir of the lessor. It was held, on a bill filed by a judgment creditor of the lessee, that the latter had not acquired either the fee-simple, subject to a perpetual rent equal to the rent reserved, or a right to a renewal, by reason of the Statute of Limitations (3 & 4 Will. 4, c. 27), length of time, or the proceedings in the lunacy matter; and that the profits received by the heir of the lessee, from 1836 to 1842, were not assets of the lessee. (Fulton v. Creagh, 3 Jones & L. 329.) No further time to be allowed for a succession of disabilities. Successive Disabilities. 18. Provided always, and be it further enacted, that when any person shall be under any of the disabilities herein before mentioned at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the c. 27, s. 18. said period of ten years next after the time at which such person 3 § 4 Will. 4, shall have died, shall be allowed by reason of any disability of any other person (1). (1) This section is so far retrospective as to extend to a case where the first person under disability died before the passing of the act. A claimant to land in the colony of New South Wales, whose ancestor died under disability in 1835, and who himself continued under disability till he brought an action of ejectment in 1856, was barred by a colonial ordinance of 1837, which applied the 3 & 4 Will. 4, c. 27, to the colony of New South Wales. (Devine v. Holloway, 9 W. R. 642; 14 Moore, P. C. C. 290.) It is easy to imagine infancy, coverture, lunacy and absence beyond the seas, so to follow one another with respect to a particular line of heirs, that by successive disabilities the period of limitation might be indefinitely protracted; the object of this section of the act is, where ten years or more have expired from the time when the right accrued to a party dying under disability, to allow his heir only ten years whether under disability or not. As to successive disabilities in the same person, see note to sect. 16, ante. Beyond the Seas. Scotland, Ireland and the adjacent 19. No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney islands not to be or Sark, nor any islands adjacent to any of them (being part of deemed beyond the dominions of his Majesty), shall be deemed to be beyond seas within the meaning of this act (m). (m) See sect. 16, ante, and 19 & 20 Vict. c. 97, s. 12, post. It was held that Dublin, or any place in Ireland, was beyond the sea within the meaning of the statute 21 Jac. 1, c. 16, s. 7. (Nightingale v. Adams, Show. 91.) Of course, Scotland was not considered beyond sea. (King v. Walker, 1 Bl. Rep. 286.) The 19th section of the stat. 3 & 4 Will. 4, c. 27, which removes disabilities by reason of residence in Ireland, &c., is applicable to cases of residence in Ireland before the passing of the statute, if the controversy has not arisen till after the passing of it. (Ex parte Hassell, In re Manchester Act, 3 Jur. 1101; 3 Y. & Coll. 617. See Battersby v. Kirk, 2 Bing. N. C. 603; Lane v. Bennett, 1 Mees. & W. 70; Tyrw. & G. 441; Ruckmaboye v. Mottichund, 8 Moore, P. C. C. 4.) seas. he 4. Concurrent Rights. 20. When the right of any person to make an entry or distress, or bring an action to recover any land or rent to which may have been entitled for an estate or interest in possession, shall have been barred by the determination of the period hereinbefore limited, which shall be applicable in such case, and such person shall, at any time during the said period, have been entitled to any other estate, interest, right or possibility, in reversion, remainder or otherwise, in or to the same land or rent, no entry, distress or action shall be made or brought by such person, or any person claiming through him, to recover such land or rent, in respect of such other estate, interest, right or possibility, unless in the meantime such land or rent shall have been recovered by some person entitled to an estate, interest or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession (n), S. |