Superior Court of Delaware, 1863

Garden v. Garden

Superior Court of Delaware · Decided July 5, 1863 · Wooten

7 Del. 574

Counsel

D. M. Bates, for the plaintiffs in the issue: The only question involved in the issue, and which the jury would be called upon to decide, was whether Francis R. Garden, whose signature had been formally subscribed, in the presence of the necessary number of witnesses, and who had also duly signed it as such witnesses in his presence, to the instrument in question, as his last will and testament, was now dead. The plaintiffs in the issue would not be able, for reasons which would be sufficiently disclosed hereafter in the examination of their witnesses, to produce any positive or direct evidence of his death, or of the exact time or place, when and where it occurred. They would, however, be able to prove such facts and circumstances in regard to him for several years past, and up to the last melancholy tidings which they or any one else had had of him, as would afford to every reasonable mind, the strongest presumption of his death several years since, although a sufficient time had not elapsed since the last sad tidings which they had been able after painful and diligent inquiry to obtain of him, to render that presumption a presumption in law; and as under such circumstances, it became incumbent upon the parties setting up the will, to establish the fact of his death simply, without being required to prove directly when or where it happened, by evidence of such facts and intelligence with regard to him, as will afford to the minds of the jury a strong and satisfactory presumption of his death, he would, without saying more for the present, proceed to lay such proof before them, as could not fail in his opinion, to conduct them irresistibly to that conclusion. Gordon, for the plaintiffs, then proposed to offer in evidence the paper writing purporting to be the will in question, which was executed in the city of Panama in New Granada in the presence of the Consul of the United States and certified by him, and to read the depositions of the subscribing witnesses who resided there, and which appeared in the subscriptions of their names as witnesses to it, and also in the execution of the instrument. Guthrie, for the defendant, objected that the authentication of the paper offered was not sufficient to admit such secondary evidence of their depositions and proof of the execution of the instrument in question.

Opinion of the Court

The Court,

Wooten, J.,

(in the absence of Gilpin, C. J.,) charged the jury : That it seemed to be conceded by the counsel for the defendant, that the formal testimony required as to the paper writing, or instrument in issue, as the last will and testament of Francis E. Garden,deceased, *579 had. been supplied upon the trial of it, and the only-ground upon which it was denied to be his last will and testament, has been, as the counsel for the defendant contends, that sufficient evidence has not been produced before the jury to warrant the presumption of his death at the present time upon all the facts and circumstances proved in regard to him. This might be said in a certain sense to be a mixed question both of fact and law; that is to say, it was a question as to a matter of fact to be decided by the jury dependent upon a question of law as to what degree of presumptive, in the absence of any direct and positive, proof, is required, or will be sufficient to warrant the jury in presuming and deciding that he is now dead, although they have no actual proof of the alleged fact before them. And this last is a legal question on which it is both the province and the duty "of the court to give you the proper instructions for your guidance when you come to consider and determine the former question. The general rule of law in regard to the presumption of death of a person, when it becomes a question, or a matter of uncertainty, whether he is dead or living, arising from the fact that he has not been seen or heard of for a period sufficient Under the circumstances to suggest the question, or a doubt about it, is that after a period of seven years absence, without in the meanwhile having been seen, heard from or heard of by any known person, his death will be presumed in law to have occured by that time, and it will not be necessary to prove his death by direct and positive evidence, or to do anything more in regard to it, than to prove the facts and circumstances from which the law in such a case will necessarily presume or imply it. And if in such case his death is still questioned or doubted, the law devolves upon the party who denies it in any action, the duty of proving that he is still living. But when the period of his absence without having been seen or heard of, is less than seven years, the presumption of his death in law does not arise without further proof of additional facts *580 and circumstances in regard to him, of such a character and import as to satisfy the jury, that although not actually and positively proved, it is highly probable, and that it would be reasonable to presume his death under such circumstances. In such a case as we have last mentioned, the law requires stricter and stronger proof of facts and circumstances to warrant the presumption of his death, than in the former case, such as an earnest and diligent effort and all proper inquiries on the part of those who allege his death, to ascertain if possible by certain and positive intelligence whether he be dead, or living, without success, before it will permit his death to be inferred from even such additional presumptive evidence merely. In the present case, therefore, if the jury were satisfied from all the facts and circumstances which they had in evidence before them in regard to Thomas B. Garden, his character, habits, health and constitution, that he had not been seen, heard from, or heard of by any one of his relations, friends or acquaintances, either in this State, or in the State of California, or elsewhere, since the month of May or J uue, in the year 1860, and that earnest and diligent efforts have been made and all proper inquiries have been instituted by the plaintiffs in this proceeding, to learn and ascertain, particularly in California where he was living when last heard of, in the meanwhile by the best means in their power, whether he is living or dead, and that they have failed to ascertain either, or to obtain any knowledge or information since then in regard to him, and you have probable cause and good reason to believe and to conclude in your own minds upon all this evidence, that he is no longer living, then and in that case, the jury would be warranted in law in presuming that he is dead at this time ; and if so, then it would be their duty to find by their verdict, that the instrument in question is his last will and testament; but if otherwise, that it is not; for no man can have a last will and testament in law, or in a legal sense, so long as he is living ; it only becomes so, as soon as he is dead.

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