MUTUAL LIFE INSURANCE.

[Lucas Circuit Court,

January Term, 1893.]

Scribner, Bentley and Haynes, JJ.

#### *Supreme Commandery Knights of the Golden Rule v. Everding et al.

1. Pleading — Names of Parties — Caption Sufficient.

It is sufficient, under Ohio practice, if the names of the parties to a suit art stated in the caption of the petition, and in the body of the petition they may be classed as plaintiffs and defendants without being again named. Where there is a qualification to be made, as where the parties are minors, after having named the parties in the caption, it should be averred.

2. Amendment to Conform Pleadings to Proof.

Where testimony not in accordance with the pleadings is admitted without objection the court may allow the pleadings to be amended to conform to the proof.

*4203. Objection to Amendment — Time Should be Allowed.

Where the admission of testimony not in accordance with the pleadings is objected to, the court may allow an amendment to the pleadings, but if the opposite party makes a showing that he has been taken by surprise, or will be prejudiced by the amendment, he is entitled to time in which to make his pleadings and prepare for trial.

4. Bubden oe Proof Under in Insurance Certificate.

Where, in an action against a mutual benefit association, the petition alleged that the plaintiff received the certificate, etc., and that the defendant association had become bound to pay $2,000, under a condition in the certificate to pay that amount if the class to which the insurance belonged was full, otherwise to pay $1.00 for each member of the class, and the defendant admitted that plaintiff received the certificate and that it would have beeu bound to pay, providing insured had not made certain representations and had not failed to pay certain assessments, and denied that there were two thousand members of the class at the time, without stating how many there were, the burden of proving that there were not two thousand members is upon the defendant.

5. Presumption Where Person Disappears.

Where a person disappears, there is no presumption either way, that he is alive or that he is dead, until seven years have elasped, when, if he remains unheard of, the law presumes that he is dead.

*6.*Beneficiary Entitled to.Recover.

Where a member of a mutual benefit association had paid all dues and assessments levied up to the time of his disappearance, and his beneficiary tenders, in proper time, payment of assessments made subsequently, such beneficiary, in action brought after seven years, during which time assured has not been heard of, and when the law presumes that he is dead, is entitled to recover the insurance.

7. Rule as to Beneficiaries.

It is sufficient in life insurance if there is such a relation at the time the policy is issued that the party would be entitled to be a beneficiary then ; and such relation having existed then, no matter what occurs afterwards, such relation is not terminated. Thus the right of a wife as beneficiary in an insurance certificate is not terminated by a subsequent divorce and a marriage to another man.

8. Association Cannot Refuse Assessments from Beneficiary.

Where it appears that a member of a mutual benefit society had paid all dues and assessments up to the date of his disappearance, the officers of such association have no right to refuse to receive an assessment, made after his disappearance, from his beneficiary (his wife in case at bar), on the ground that, insured having disappeared, they wished to get further news concerning him, what had become of him, etc., arid also wanted further orders from the superior officers.

8. Burden of Proof for Refusing Assessment.

Where a person insured has disappeared and as a defense to the tender of an-' assessment by his beneficiary it is claimed that insured was dead at the time the tender was made, the burden of establishing that fact is upon the insurance association.

10. Record in Divorce Proceedings not Admissible.

There is no presumption from the fact that divorce was granted to the abandoned wife three years after her husband disappeared, that the husband was then living or that he was dead. Therefore the record of the divorce proceeding is incompetent as evidence in an action under a certificate of insurance.

Heard on Error.

*

 Dismissed in Supreme Court at costs of plaintiff, June 13, 1893.

Haynes, J.

This is a petition in error filed for the purpose of reversing the judgment of the court of common pleas of Lucas county. The case was *421brought ■ in the court below by Margaret Everding, Carl H. Gram, William Arthur, Gram, an infant, by his next friend, Margaret Eveiding, and Albert Gram, an infant, by his next friend, Margaret Everding, plaintiffs, against the supreme commandery of the order of the Knights of the Golden Rule, defendants. In their petition the plaintiffs aver, first, chat William Arthur Gram and Albert Gram, set out in the caption above, are each minors, and are each under the age of twenty years ; that this action is prosecuted by Margaret Everding, next friend of said William Arthur Gram and said Albert Gram, for the benefit of said minors respectively.

It then proceeds to set out that the defendant company is an association in the nature of an insurance association, and that one Charles F. Gram, who was formerly the husband of Margaret Everding and the father of these children by the name of Gram, became a member of Castle Oliver, so-called, at Toledo, Ohio, of the Knights of the Golden Rule, of the third class, and they aver that on July 1,1882, he was then such member of such order and in good standing and entitled to all the benefits of the order. They then set up that the defendant company, on April 7, 1880, executed to them a certificate made in accordance with the rules and regulations of said order and through said Castle Oliver, and they set forth a copy of it and attach it to the petition, and aver that the said defendant thereby became obligated to pay to said Margaret Everding, at that time Margaret Gram, Carl H. Gram, William Arthur Gram and Albert Gram $2,000, together with accrued assessments, provided there were sufficient members of said class so that the assessment should realize that amount in excess of amount reserved by the rules of said order for expenses, and plaintiff alleges the fact to be that there were sufficient members in said class to pay the member’s benefit, and that there is due them from said order the sum of $2,000 and interest from Tuly, 1882.

Plaintiffs further allege that on July 1, 1882, said Charles F. Gram disappeared and has never since been seen by them, or anyone, to their knowledge, and that said Gram has been missing for over seven years last past, and plaintiffs allege that on said day said Charles F. Gram died. Plaintiffs allege that proof of his said death and proof of the good standing of said decedent in the third class of the order at said date has been duly furnished to said order and supreme commandery, and that the benefit certificate set out as exhibit “A” has been tendered to said order and supreme commandery, and payment thereof demanded and refused. Plaintiffs say that said formal proof of death was furnished on or about the (blank) day of September, 1889." (The word “ September” there, it is said, is written over the word “ May.” It is pretty clear and distinct, although we can seethe “ Y.” I speak of this in passing, for it will come up further on.) Plaintiffs further, say that on or about July 10, 1882, they notified said castle and caused said supreme commandery to be notified of the disappearance of the said Charles F. Gram, and that said order and castle then agreed to take the matter of the disappearance of the said Charles F. Gram under advisement and refused to accept and receive payment of the only assessment which was then payable, which assessment was not payable at the time of the disappearance of said Gram, and have since refused to pay the amount due on the said certificate, alleging as a reason that said Gram was not dead.

To that there was a demurrer: First, that there is a misjoinder of parties. Second, that the petition does not set forth facts sufficient to constitute a cause of action against defendant.

*422•The demurrer being overruled, the defendant below filed an answer to the petition as amended, as is stated here. That answer was filed November 12, 1890. Suffice it to say, that, having admitted the existence of the order and the issuance of the certificate, they deny the death of the plaintiff and aver that he had failed'to perform the conditions of the certificate, in that he had failed to pay certain assessments, and that by reason thereof he had ceased to be a member. They say also that there were not two thousand members in the thii d class.

“ Defendant further answering says, it has no knowledge, except the statements in said petition, that Margaret Fverding ever was the wife of Charles F. Gram, nor that Carl H. Gram, William Arthur Gram and Albert Gram are his children, that they are the only children, or that they are minors under the age of twenty years. * * * Defendant admits that the certificate of benefit would, upon the conditions set out in the certificate, after the death of said Charles F. Gram, entitle Margaret Gram and his children to the benefits provided for in said certificate after the death of Charles F. Gram, provided the declarations and representations of said applicant for such certificate were truthfully made, and that said Charles F. Gram should continue up to the time of his death a member in good standing in said order and in said Castle Oliver No. 25, and upon the full compliance with the laws of said order in foice at the time of his death, and the payment of all dues and assessments levied and required to be paid by him to the Knight benefit fund of this class, and he had not committed suicide, and upon due notice and proof of his death and proof of his good standing in the third class of the order.

They admit that he would be entitled to receive the benefit of this certificate if he had complied with the conditions which we have mentioned. But they aver: “ That said Charles F. Gram obtained said benefit certificate upon declarations which are false and untrue, and that he had not complied with all the rules and regulations of the order ; that he has not paid all the dues and asi-essments made upon him ; that for that reason long prior to July 1, 1882, he had not been in good standing in said Castle Oliver and has been under suspension from membership in the order of the Knights of the Golden Rule prior to said date. Defendant denies that said Gram died on July 1, 1882, or that he has died at any time since said date. Defendant denies that proof of the death of said Charles F. Gram, or of his good standing in Castle Oliver has been made or furnished to defendant; denies that there are or ever have been two thousand members in good standing in said third class. And defendant denies each and every allegation in said amended petition not expressly answered or denied, as therein alleged.”

To that there was a reply. The case came up first upon demurrer to the petition. That was overruled. The petition, after averring the existence of the 'obligation and the issuing of the certificate, had averred that the party had died at the date certified, to-wit, in July, 1882. It averred that proof had been made to the defendant of the death of the party, and it made its claim for the sum of $2,000. It is true as is stated, and it is not denied, that the petition did show at that time that the proofs were filed in May, 1889; that would be within seven years from 1882. The court overruled the demurrer; and it seems to us that they overruled it rightly, as far as the main question is concerned, because there was a distinct averment of his death at a particular time, and *423that the other allegations were sufficient to show an obligation on the part of the defendant to pay, and a proof of loss filed before the commencement of the suit. It is only when you strike out the allegation •of death in 1882, that the filing of the proof in May becomes a matter •of any consequence in this suit; because having stricken out that allegation, then the claim can be filed with the company within the seven years'.

But going back to the first point which was raised in the demurrer, and which was here argued, and that is, that the suit is not properly brought in the name of the proper parties to the suit. The benefit certificate which is authorized by the company, and which is in accordance with the rules of the company, provides:

> “ This certifies, that the Order of Knights of the Golden Ru'e has been conferred upon Comrade Charles F. Gram, and that he is a n ember •of the order in good standing in Castle Oliver No. 25, located at T-.edo, state of Ohio. And in consideration of the representations and declarations made in his application for this certificate, which application is on file in the supreme secretary’s office, and is made a part hereof, and the payment of the admission fee of one dollar, and in consideration of the payment hereafter to the knight benefit fund of this class of the order, of all assessments as levied and required by the supreme commandery, the full compliance with all the laws of this order now in force or that may hereafter be enacted, and the being in good standing under said laws, the sum of two thousand dollars, together with accrued assessments, will be paid from the knight benefit fund of the third class of this order, by the supreme commandery Knights of the Golden Rule, to his wife, Margaret Gram, and his children, as said comrade has directed in his applicatim for this certificate, or as he shall hereafter direct in an application for a change thereof under the laws of the order, upon due notice and proof of his death, aud proof of his good standing in the third class of the order, at the time of his death and the surrender of this certificate, but not otherwise.

> “Provided, however, that if there shall not be sufficient'members in this class to pay the maximum benefit, there shall only be paid a sum equal to one dollar for each member in good standing in this class at the time of the death of said Comrade Charles F. Gram, less ten per cent, to the expense and reserve fund, as provided by law, together with the full amount of said comrade’s accrued assessments paid by him in this class: And provided further, that any violation of the above-mentioned conditions, or of the requirements of the laws now in force, or hereafter enacted, governing the order, or this class, shall render this certificate, .and all claims under it, or upon the order, null and void, in which event the supreme commandery shall not be liable for the above sum or any part thereof.”

Now the suit is brought in the name of Margaret Everding, Carl H. ■Gram, William Arthur Gram, an infant, by his next friend, Margaret Everding, and Albert Gram, an infant, by his next friend, Margaret Everding. The averment of the petition is that the two last-named are infants, and that the suit is brought by. Margaret Everding as their next friend. It is claimed that the caption of the petition is no part of the petition, that we must refer to the body of the petition for the parties, and some work on pleading is cited. The custom, in Ohio has been, and the understanding has been, and the practice, working under the *424code has been, ever since its adoption, that the statement of the parties named in the petition as plaintiff constitutes them plaintiffs and is a sufficient statement of the names of the parties who are plaintiffs. If there is any qualification to be made in any respect, it should be properly followed by an averment, as is done here, that they are minors and bring suit by their' next friend. The plaintiffs alluded to are the plaintiffs who are named above, and Bliss in his work quotes some of the decisions of other states holding that that is a sufficient statement of the names of the plaintiffs. Our own experience has been, during all of the time we have been at the bar, that it is customary to commence a suit in this way, and we think it is proper so far as the names of the plaintiffs are concerned that they are put once at the head of the petition, as required by the code, and that it is not necessary afterwards to name them, but the parties may be simply classed as plaintiffs or defendants.

There is back of that, however, a question of more importance that has been argued at greater length, but I think I will refer to it further on. Sufficient to say, that, on these other grounds, the court did not err in overruling the demurrer.

We will turn next' to the question of the amendment to the petition. Upon reading the record of the case it shows that the whole case was tried, and the parties proceeded to offer their evidence in regard to the time when the proofs were filed with the defendant company, upon the assumption or theory that the time in issue was the time fixed, September, 1889. The record shows that the court had ho knowledge that any other or different time was nalmed in the petition or had been. The court says, at the time of the making of the question : “ Objection was made at no time to the admissibility of evidence relating to the proof of September, 1889, on the ground that the making of such proof had not been alleged in the petition.” And an examination of the record shows the correctness of that statement, and the court was not aware that it was not alleged in the petition until counsel for plaintiff asked leave to amend his petition in that regard. And it appears that the parties went on to offer proof in regard to the filing of this September proof as alleged, Mr. Fuller giving testimony that he filed it at tire office at such a date, and Mr. Irving giving testimony in regard to the matter which tended to show, at least, proof to the contrary. There was objection made to the proofs at this time, on the ground that they were not in proper form, and there was considerable discussion upon that question and quite a number of questions asked by the court, and the result was that while counsel were objecting that they were not in proper form, yet the evidence showed that at the time when they were said to have been filed at the office of the company, by Mr. Fuller, in September, 189- that they made no objection whatever to the form of the proof, but simply said in reply that Gram was not a member of the company in July, 1882, nor after that time. After the evidence was all in, and after the court had permitted these proofs to be offered in evidence and counsel had commenced the argument of the case, then counsel for plaintiff made an application to be allowed to amend the petition by interlining that the proofs were filed in September instead of May, as was stated. The court allowed the amendment and it was interlined by writingSeptember ” over “May,” and it was admitted by the record that the word “ May ” before that time had been written, but it was practically obliterated.

*425Counsel for defendant below are very earnest in their objection, and in arguing the objection, that the court had no right to allow this amendment, or perhaps I should state it a little differently by.saying that it was an abuse of the discretion of the court below to allow it to be done at all. We have had occasion to examine this question heretofore, in a case in Wood county, and at that time there was a very full examination of the law upon the subject, and the rule laid down by the Supreme Court is, that in a case of this kind, where testimony has been offered, without objection, that is not in accordance with the terms of the pleadings of the parties, the courts may then allow an amendment to be made in the record to conform to the evidence. They may, if objection be made at the time the .testimony is offered, that it is not in accordance with the allegations of the pleadings of the parties, then allow the amendment to be made; but if the opposite party makes a showing to the court that he has been taken by surprise, or is prejudiced by the amendment, then the court shall give him time in which to make his pleadings and prepare himself for trial, and we followed those decisions in the holdings which we made in Wood county. Now, this evidence having gone in without objection, no claim being made that the party was misled in regard to it in his testimony in defense, the court permitted the pleadings to be amended, and in doing that there was no abuse of the discretion of the court, in our view, and we think that it was, in the language of the statute, “ in furtherance of justice.” '

There is another question that is discussed.here, and that is the question of the burden of proof upon the conditions. It will be observed, as has already been read, that there was given to the party a certificate wherein the company certified that he was entitled, and whereby they agreed to pay to his wife Margaret Gram and his children, the sum of $2,000, with the proviso attached to it: “ that if there shall not be sufficient members in this class to pay the maximum benefit, there shall only be paid the sum of one dollar for each member in good standing in this class at the time of the death of said Comrade Charles F. Gram, less ten per cent, to the expense and reserve fund.” The allegation of the petition was, as I have already read, that the party had received this certificate, and the defendant had become bound to pay $2,000. The defendant admitted that he had received the certificate, and that it would have been bound to pay providing Gram had not made certain representations and had not failed to pay certain assessments. And it denies that there were two thousand members of this class at the time. It does not state how many there were.

We are of the opinion tha,t the court of common pleas did not err in holding that the burden of proof in this matter was upon the defendant, in view of the pleadings in this case. The question might also arise, and probably it was one of the questions raised by the parties on demurrer: that there should have been a distinct allegation of the full number of the class; but they did aver that they were entitled to that sum in that class. In Fox v. Lima Natl. Bank, 11 Dec., 127, which is a court of common pleas decision, gives a very full list of cases, and it is there held that the case belongs to that class of exceptions that are within the knowledge of the defendant exclusively; that it is a condition which relieves the party from the payment of that which he has promised by an absolute promise to pay. If there is a promise to pay $2,000, *426the company exempts itself from paying that amount upon the death of the party by a proviso that if there should be less than that number in that class, then ihey shall pay only one dollar for every member of that class, and that exception should be pleaded by them, should be set out by them, and should be proved by them. There is a large number of cases cited. There is Hall v. Scottish Rite, 6 Circ. Dec., 384, decided in Cleveland, a decision of Judge Baldwin, in which an opinion is given upon allegations of this kind, There had been allegations that at the time the party became a member of the order there were a number of members equal to the number of dollars mentioned by the certificate. The court charged the jury that the burden of proof was on the plaintiff to show that at the time the party died there was the full number of members in that particular order which would entitle him, at the given rate, to the full sum claimed in his petition. The court, by a large citation of authorities, held that the common pleas had erred in this respect. Probably there must have been some misquotation in the record itself; at any rate, the circuit court held that the court below had erred in this respect. We think the weight of authority is very clear, that the defendant was bound to prove this exception ; that it was bound to show and had the means of showing, if there was not that number at the time the party entered, and more especially if there was not that number at the time he died, or was supposed to have died, which would enable him to have had the full sum of $2,000.

Another question is raised, and I suppose it was argued on the demurrer, as I have already said, but it was raised afterwards in the pleadings, upon the right of Margaret Everding to sue. She was the wife of Gram at the time he became a member of this order; she was the wife of Gram at the time he left, in July, 1882, he having disappeared on the first day of July, 1882, and according to the testimony, has not been seen since. She waited three years after he left, and then filed a petition for divorce in the court of common pleas of this county, and obtained a decree of divorce. She had been a resident of this county for two years at least, and perhaps was at the time the pleadings were filed, although she had gone over sometime during the third year to Detroit, to stay with her family; perhaps she had gone there to live. I don’t consider it very material, right here, whether she had or not. At any rate, she had come in and got a divorce, on the ground of absence and after she obtained that divorce she had married again and became the wife of this man Everding, and with him she was, at the time of the suit, and is now, I suppose, living, at Detroit, Michigan, and counsel for the association proceed upon the theory that she must have had, at the time the trial was had, and all the time, an insurable interest in the life of Charles F. Gram, and object to this suit because, having become divorced, she ceased to be a member of his family, ceased to be his wife and became the wife of another, and that therefore her insurable interest had terminated, and she had no right to this money. Now the certificate, as will be remembered, is issued payable, in case of his death, to his wife, Margaret Gram, and his children. Some of these certificates are made payable to the members of the family, and some in one form and some in another. Now, this question comes here and has been argued upon demurrer, and' is before the court. We think this question is decided by Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S., 457, decided in 1888, where there is a very full citation of authorities and a very full decision of the *427case. That was a case where there was a life insurance made upon a man and his wife, payable, I believe, to the survivor. Afterwards they became divorced and she intermarried. with another party, and was the wife of another party at the time of the commencement of the suit. The first husband died, and thereupon suit was brought for the recovery of the amount of the insurance, and this very question was raised and was argued by counsel. The case went up from Cincinnati and was argued by Johnson, of Hoadly & Johnson, and the Supreme Court gave a decision upon the case and treat the law as well established and give citations, treating it as a case so clear that it did not need a large amount of argument. Fife insurance proceeds, not upon the theory held in regard to fire insurance, where there must be an insurable interest continuing in the party holding the insurance down to the time of the loss, but the court say it is sufficient that there was such a relation at the time the policy was issued, that the party would be entitled to be a beneficiary at the time the policy issued, and that having existed at thse time the policy was issued, no matter what occurred afterwards, the assured interest in the policy could not be terminated; that the party being a beneficiary, the contract continued to be an obligation to pa_y a certain amount of money on the happening of a certain event, and that Court held that the divorce of the party and the intermarriage of the party made no difference whatever, and that she was entitled to recover and receive the benefit. It is so decided by leading cases on insurance, and we think this is a correct statement of the law of the case.

This certificate reads that there shall be paid to Margaret Gram, who was then his wife, and designates her as the particular person to whom this sum was to' be paid in connection with .his children, and the suit is brought in her name and in the name of the children, and we have no doubt but they are the proper persons to bring the suit, and are the proper persons to recover if anybody is entitled to recover, the amount of this certificate.

There was a question discussed in regard to the payment of the assessment ; a question as to whether this man was a member of this lodge or *council;*whether the policy was still in force which was being sued upon. It appears from the testimony that after Gram had become a .member of the castle he paid up his dues from time to time, and that the last dues which he paid was on June 17, being the June assessment, which was due on the first of June, 1882, being a few days before he went away. It further appears that there was issued to the secretary of the castle, from the home office, as we should say, that is, from the supreme commandery, in proper form, an assessment for July, and that that was received by the.secretary and sent out by him to Gram, at what time I do not know, but I believe he sent them on the first, and this came to the house after Gram had disappeared, as I understand. By the rules of the company, he had thirty days to pay that assessment in. These assessments were found among his papers. On July 10, Mrs. Gram went to the office of the company and offered to pay $3.00. The officers declined to receive this, from the fact that he had disappeared and they wanted to get further news from him, what had become of him; and also wanted further orders from their superior officers, the general commandery. However, they never made any application to the supreme commandery, and there was nothing said about that from that time forward down to this, and no further assessments were ever made or demanded of Gram. *428These assessments would be due, then, on the first day of July by the rules of the company. But also, by the rules of the company, if a party did not pay them upon the first day of July, he might pay them at any time within thirty days thereafter. By the rules of the company also the party would be suspended on the first day of July. But, without any further examination, or anything of that kind, by the rules of the company, he might within the next tnirty days, pay the amount of the assessment and be fully reinstated and taken back as a member ; his suspension should not really take effect, practically, until the expiration of thirty, days, while he had the right to pay.

Now the question is made whether or not he was a member of the order and the certificate was in force at the time the suit was brought. There hás been considerable discussion upon the question of this seven year limitation and a good deal'of learning expended upon that in the authorities which have been cited. The presumption of law is, that after the expiration of that time from his disappearance, taking, of course, into account the circumstances, under which he disappeared, if he has not been heard from he is presumed to be dead. The question is as to the status of the presumption during the seven years.

There is a very instructive case upon that question in *7'2*Wisconsin, page 170, and that seems to give all the law upon the subject down to the present time. The holding of that authority is that there is no presumption upon the question one way or the other. It is contended here that the plaintiff should prove that the person was living on July 10, at the time this money was tendered. On the other hand, it was claimed that the defendant company should prove that the party was dead before that time. The court state that there was no presumption that the party had died until seven years had elapsed, and then the law presumes that the party is dead. Now we are of the opinion that Mrs. Gram had the right to tender that money. She was the beneficiary in that certificate or policy, and she had a right to tender it on behalf of her husband, so as to keep that policy alive, if peradventure the man might return. They refused to take it simply for the reason that he had gone away, and they not, knowing whether he was dead or not. We think that the proof, if any proof was needed, should have come from them that the party was dead at the time the tender was made, and the charge of the court proceeded upon that assumption. The case went to the jury which found for the plaintiff, and the court sustained that finding, and we think it properly did so. That is one of the leading points in the case.

Judge Pike: “ Does the court make any finding on the refusal to allow the introduction of the record of the divorce suit? ”

■ The Court: “ We see no error in that. The question was discussed there, and the question proceeded in the discussion as to what she might have done or set up, and had something to do with the proof that he was dead. We do not understand that if she had admitted that he was living, or dead, that it would have changed the presumption of law. The fact of the divorce was admitted, and was before the jury. There was no presumption that the man was living or dead. This woman could not marry again during the seven years without subjecting herself to a liability to be prosecuted for bigamy, for, as long ago as 1880,1 think it was, a court in Massachusetts held that where a woman had married within five years, although she had heard that her husband was dead, she was held not entitled to marry until after the seven years. This *429woman would have been subject to a prosecution for bigamy if she had married within that time without a divorce. It was proper for her under the divorce laws of the state, and we think it is the same in Michigan, to make an application for the purpose of clearing herself of the marriage relation which existed, and she proceeded upon the presumption that he was still living as she properly should. There was no presumption of law as to his death until seven years had expired from the date at which he had disappeared. We do not see how the fact of the divorce cuts any figure in the case in regard to that presumption. Either party might have offered evidence for the purpose of showing the fact that he had died at any time within the period of seven years, as they might have offered evidence for the .purpose of showing that he did not die at at all. As has been said, there was in the case no presumption except the presumption of law. He had gone away and had not been heard of. Nobody knew whether he was alive or dead. We have read the charge and the requests to charge, and we are clear in the opinion that the court gave the law as fully as the plaintiff or the defendant was entitled to have it, and that there was no error in declining to give further charges asked by the defendant below. After a very careful examination of the record, we are clearly of the opinion that the judgment of the court ot common pleas should be affirmed, but there was reasonable cause for bringing the case before this court.

The plaintiff in error excepted to the action of the court in affirming the judgment below.