The Milan exchange. (Milan, Gibson County, Tenn.) 1874-1978, 1876-08-17
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Curious Cases in Law.

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courts of New York, and then to receive
fbuk a passing examination, is involved
{ IN case that has come for adjudica.
ton before the Surrogate of Kings
County. Henry r. Rogers and Rebec.
ca, his wife, residents of Brooklyn, took
passage last, fail for. Galveston in the
City Of Waco. The vessel was detained
at the entrance to the port of ~its desti-
nation by heavy storm, accompanied
by thunder and lightning. 1t took fire,
was burned to, the waters edge, and all
fon board iperished. Mrs. Rogers, at
the time of her death, had $4,000 to her
credit in the Williamsburgh Savings
Bank. To this money Charles w. Rog-
ers, q brother of her husband, lays
claim, on the ground that the law, in
the absence of evidence to the contrary,
presumes that Mrs. Rogers, being, as a
woman, naturally weaker than her hus-
band, succumbed before him in the dis
aster that befell them, in which event
her personal property would have
passed to him, though he perished the
next moment himself, and would be
transmitted through him to his next of
This question of survivOrship, where
persons related TO each other are lost
by the same accident, and rights of in
heritance are to be determined by the
order in which they die, is one of the
most unsettled as well as one of the
most interesting within the legal y,do-
main, affecting often the disposition of
large estates. When the details of a
disaster are known, there is no diff
Guilty, for the circumstances may then
be proven as other facts are, and they
Will control any presumption of law.
Persons who have perished at the same
moment transmit no rights to each Oth-
er, and the one dying in the ownership
passes his property to his heirs or next
fUf Xmas though those who died with
him had never lived. If a person sur
! wives his companions in misfortune but
a single instant, it is sufficient to make
J him inherit and become the medium of
transmission to others. A minute for
that purpose is as good as an hour, and
an hour as a day; it is impossible to
draw q line.
But in absence Of evidence of the ac-
tual facts, the question arises, shall the
law presume, from the relative ages,
sexes, and physical conditions of the
| persons that have been lost, that one or
the other succumbed first, or shah it
consider that they persisted at the same
time; and upon this problem vast inge-
nuity and learning have been bestowed,
without settling it, ATTN
An interesting case involving this
question of survivorship was tried very
recently in New Orleans. James Gal
lier, Sr., architect of that city, and
| Catharine Maria Robinson, his second
wife, sailing from New York for their
home, in the steamer Evening Star,
were lost in the wreck of that vessel on
the Sd of October, 1866. Mr.. Caller
left will bequeathing to his wife S5,-
! 900 and valuable piece of real estate.
There were no children of the marriage,
and nobody coming forward as heir of
Mrs. Caller to make any claim upon
the estate, James Caller, Jr., a son of
Mr.. Caller by previous marriage,
took all of his fathers property as sole
heir on January l3, 1867, In 1868 he
died, leaving four daughters to inherit
his fathers property, and their right TO
it remained unquestiOned until a few
months ago, when heirs of Mrs. Caller
presented themselves to demand the
money and the real estate bequeathed
to her in the will of the elder Caller,
If Mr.. Caller and his wife perished
simultaneously in the wreck of the
Evening Star, or Mrs Caller succumb-
ed first, she could not become legatee
under his will, and her heirs could not
take through her; but her heirs claimed
that she survived her husband both as a
matter of fact and as presumption of
law, and they brought an action against
the succession of James Caller, Jr.,
in the United States Circuit Court.
The law of Louisiana, applicable to
such case, is unlike that of the other
States of the Union or that of England.
The code of that State, following the
I Code Napoleon, which in turn is based
upon the civil law, fixes certain arbi-
trary presumptiOns to govern in cases
of this kind; as for instance, where the
4 persons perishing are all over the age
Of sixty, TIE youngest is presumed to
have survived where they are all un-
der fifteen, the eldest; and, under GER
! tain circumstances, the male is consid-
cred to survive the female, although the
4 slightest evidence of the real facts may
ALWAYS be submitted to the jury to re-
but the legal presumption.
= 1t was shown that Mr., Caller, at the
A time of the wreck, was sixty-eight years
of age, of slight build, and in i'll health,
while his wife was only forty-four, and
in vigorous health. One witness. testi-
fed that after the shin had been given
up for lost, but quarters of an
hour before it sank, he saw both Mr..
Caller and his wife in their stateiroom.
Another witness said that after the ship
had gone down he saw her in the water,
clinging to spar, but Mr.. Caller he
did not see anywhere. Another te5ti-
fed that he found her in the water, and
three times tried to help her into the
life boat, but that each time the boat
capsized, and that the third time she
sank and did not reappear. In contra
diction to this witness, two persons tes-
titled that they. had seen the woman
who was being helped into the life-boat,
and that it was not Mrs. Caller. The
4 question: of survivorship, as mixed
4 question of law and fact, was left tc
the jury under the instructions of the
court, and after avery brief delibera.
ton they returned verdict for the de.
fendants. 'as4 81 s7h
The only, case of the kind that has
received Consideration IN the courts O
New York was that of Moehring agt
Mitchell, reported in the first volume
, of Barbour's Chaneery Reports. II
, May, 1910, Mrs. Isabella Leo Vol
: procured policy of insurance upor
the life of her husband for IS, 900 in tn,
& New York Life insurance and. Trus
Company, which, in the event Of he
death before hers husband, was to bC
paid upon his decease to her children
In March, 1S41, she sailed with be-
, husband and her only child, an infan
daughter, in the steamship President
for Europe. The vessel was never af
terward heard of, nor was any evidenc'
| ever found to tell of the circumstance!
of her loss. The executor of the vii