PRESUMPTION AS TO WHETHER A MISSING PERSON IS LIVING OR DEAD.

Court of Appeals for Franklin County.

#### John S. Young v. Wheeler J. Young et al.

Decided, February 20, 1919.

*Burden of Proof*— Of *the Death of One Mysteriously Missing*— Rests *for Seven Years on the Party Asserting Death*— Presumption *of Death then Arises.*

Where a person mysteriously disappears and is not again heard from, a legal presumption of his death does not arise until seven years from the date of his disappearance, and in the absence of any proof showing his death the property of an ancestor dying within •the seven year period will be presumed to have descended to such ■ absent heir.”

*525*M. E. Thrailhill*and *John B. Horst,*attorneys for plaintiffs in error.

*James A. Allen,*attorney for James Ross and William R. Diehl.

*Donaldson & Tussing,*attorneys for the Sifrits.

*Huggins, Pretzman <& Davies,*attorneys for Anna Yonng individually and as executrix.

Ktjnkle, J.

This case comes into this court on error from the judgment of the court of eomihon pleas.

In brief the facts disclosed by the record show that John S. Young Sr., late of this county, died intestate, March 4, 1900, owning 98 acres of land in this county; that he had two children, Edward W. and Wheeler J. Young; that Wheeler J. Young disappeared on December 31, 1899, and has not been seen nor heard from since the date of his disappearance; that Wheeler J. Young was sheriff of this county at the time of his disappearance and that his second term of office, as such sheriff, expired the day after his disappearance; that at the time of such disappearance Wheeler J. Young was a man of about fifty years of age and in apparently good health; that he made an assignment of all his property upon the day of his disappearance; that he was a man of striking appearance and had an unusually large circle of friends and acquaintances.

In view of the circumstances disclosed by the record it is claimed by counsel for plaintiff in error that Wheeler J. Young was either killed or committed suicide on December 31, 1899, the day of his disappearance.

It further appears from the- record that Edward W. Young, the brother of Wheeler J. Young, died intestate, November 12, 1907, leaving the plaintiff in error, John S. Young, Jr., and Joseph Young, now deceased, as his only children and heirs at law.

Under this state of facts to whom does the 98-acre tract of land above referred to belong?

- If Wheeler J. Young died on the day of his disappearance, then he can not be considered as an heir of his father, John S. *526Young, Sr., as the father died after the date of such disappearance, namely, on March 4, 1900, and none of the defendants in error are entitled to an interest in this land through Wheeler J. Young, either as creditors or otherwise.

If Wheeler J. Young was living at the time of the death of his father, namely, on March 4, 1900, then certain of the defendants in error have an interest in said 98-aere tract of land.

If Wheeler J. Young died December 31, 1899, that being the date of his disappearance, or at any time prior to March 4, 1900, then the judgment which was recovered by William R. Diehl on April 6, 1900, was rendered against a dead man and is void.

If Wheeler J. Young died December 31, 1899, or at any time prior to the death of his father, then the judgment for alimony in favor of Mrs. Young which was recovered July 31 would be void for the same reason and the devise of same to her son, William R. Diehl, would be of no effect.

If Wheeler J. Young died December 31, 1899, or at any time prior to the death of his father, then he was- not seized of any interest in his father’s estate, and Edward W. Young was the sole heir of the father, John S. Young, Sr.

We have no doubt but that counsel have investigated every clew to determine whether Wheeler J. Young is dead or alive, but it is conceded that the record does not contain any facts which show whether Wheeler J. Young is actually dead or alive, or if dead, when he died.

Certain facts are disclosed by the record which tend to show that Wheeler J. Young had a motive for concealing his identity at the time of his disappearance, namely, financial and domestic troubles.

Upon the other hand, it is claimed that Wheeler J. Young was a man of such striking personality and had such a wide acquaitanceship that, if living, he could not have concealed his identity for this length of time had he desired to do so.

Any conclusion reached is mere conjecture, as the record does not contain any testimony which would justify the finding that Wheeler J. Young was either actually dead or alive on March 4, 1900, the date of the death of his father.

*527This case must, therefore, be determined upon legal presumptions.

What is the legal presumption as to the date of the death of Wheeler J. Young?

Upon the one hand it is claimed that the legal presumption is that Wheeler J. Young died on the date of his disappearance, and that the burden rests upon defendants in error to show that he was living at the time of his father’s death.

Upon the other hand it is claimed that such presumption does not arise until the expiration of seven years from the date of the disappearance of Wheeler J. Young; that the evidence shows he was-alive and in apparently good health within about three months from the date of the death of his father, and that, under the pleadings and the law the burden rests upon plaintiff in error to prove that Wheeler J. Young was not living when his father died.

We have carefully considered the very helpful briefs which have been filed by counsel.

• We shall not attempt to discuss these authorities in detail, but from a consideration of the same, we think the presumption is that Wheeler J. Young was living at the date of the death of his father.

In the 10th O. S. Reports, page 596, the first paragraph of the syllabus is as follows:

> “When a man leaves his home or usual place of residence, and goes to parts unknown, and is not heard of or known to be living for the period of seven years, the legal presumption arises that he is dead.”

In the 33d O. S. Reports, page 155, the first paragraph of the syllabus is as follows:

> “ If a husband leaves his family and usual place of residence, and goes to parts unknown or a distant state and is not heard of or known to be living for the period of seven years, the presumption arises that he is dead. ’ ’

In G-reenleaf on Evidence (15th Edition), Volume 1, page 62, the following rule is announced:

> *528“Other presumptions are founded on the experienced continuance of permanency of longer and shorter duration in human affairs. When, therefore, the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation or state of things continues to exist as before, until the contrary is shown or until a different presumption is raised, from the nature of the subject in question.

> “(a) Thus, where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death.

> “(b) But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.”

Upon a consideration of the pleadings, the record and authorities cited, we are of opinion that the weight of authority and the better reasoning sustains the finding that a legal presumption of the death of Wheeler J. Young did not arise until the expiration of seven years from the date of his disappearance, and in the absence of any proof showing his death prior to March 4, 1900, Wheeler J. Young should be considered as an heir of his father, John 8. Young, Sr., and entitled to a one-half interest in the 98-acre tract of land in question.

In reference to the claim that the court had no jurisdiction in the alimony proceedings of Anna Young, we are of opinion that under the decision of our Supreme Court in the case of *Benner*v. *Benner,*63 O. S. Reports, 220, the court acquired jurisdiction to decree the property in question and that the proceedings in that case were regular.

We have also considered the objections urged against the .Sifrit judgment and the other errors claimed by counsel for plaintiff in error, but finding no prejudicial error in the record, the judgment of the lower court will be affirmed.

Allread and Ferneding, JJ., concur.