The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-07-28
CURIOUS CASES IN Law.
An interesting question OF law that

An interesting question: OI INV tuht nhs
been raised only once before in the courts of
New York, and then to receive but passing
examination, is involved in a case that has come
for adjudication before the Surrogate Of Kings
county Henry Il. Rogers and Rebeccn, his wife,
residents Of Brooklyn, took passage last fall 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 thun-
der and lightning. II took Are, was burned to
the waters edge, and all on board persisted. Mrs
Rogers at the time Of her death, had $1,000 to
h er credit In the WilliamsburRh Savings Bank.
To this money Charles w. Rogers a 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 woman,
naturally weaker than her husband, succumbed
before him In the disaster that befeIl them. in
which event her personal property would have
passed to him, though he persisted the next mo
ment himself, and would be transmitted through
him to his next Of kin.
This question OF survivorship, where persons
related to each other are lost by the same accl-
dent, and rights Of inheritance arc to be de-
termned by the order in which they die. is one
Of the most unsettled as we'll as one Of the most
interesting within the legal domain, affecting
often the disposition Of large estates. When the
details of disaster are known, there Il no din-
Guilty, for the circumstances may then be proven
as other facts are, and they will control any pre-
sumption OF law. Persons who have persisted at
the same moment transmit no rights to each
other, and the one dying In the ownership passes
his property to his heirs or next Of kin as though
those who died with him had never lived. II
person survives his companions In misfortune
but single instant, It is sufficient to make him
inherit and become the medium Of transmission
to Others. minute for that purpose Is as good
as an hour, and an hour as day II is impos-
sible to draw line.
hut In advance Of evidence Of the actual 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 shall II consider
that they persisted at the same time and upon
this problem vast ingenuity and learning have
been bestowed, without settling II.
An interesting case involving this question OF
surviyorship was tried very recently in New Or
leans James Caller Sr., architect OF that city,
and Catherine 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, 1868. Mr.. Gal
lier left will bequeathing to his wife 5000 and
| a valuable piece Of real estate. There were no
| children of the marriage, and nobody coming
| claim upon the estate, James Caller, Jr., n son
Of Mr.. Caller by previous marriage. took all of
his fathers property sole heir on January
| u, 1867 In 1865 he died. leaving four dsugh-
| tiers to inherit his fathers property, and their
| right to It remained unquestioned until few
months ago when heirs OF Mrs. Caller pre-
| sented themselves to demand tho money and
the real estate bequeathed to her In the will of
| the elder Caller. II Mr.. Caller and his wife
| persisted simultaneously In the wreck of the
Evening star. or Mrs. Caller succumbed nrst,
| she could not become a legatoe 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 presumption of
law, and they brought an action against the sue
| cession OF James Caller, Jr., in the United
| States Circuit Court.
| The law of Louisiana, applicable to such a
| case, Is unlike that OF the other States of the
| Union or that Of England The code OF that
State, following the Code Napoleon, which in
turn is based upon the civil law Axes certain ar
| btrary prcsumptions To govern in cases of this
kind as for instance. where the persons perish
ing are all over the age Of sixty, the youngest Is
| presumed 70 have survived; where they are all
under fifteen, the eldest; and, under certain cir
cumstanccs, the male Is considered to survive
the female, although the slightest evidence Of
| jury to rebuff the legal presumption.
II was shown that Mr.. Caller, at the time
! Of the wreck, sixty-eght years Of age
| OF slight build, and in Ill health, while hi
| wife was only forty-four, and In vigorous health
one witness testified that after the ship haC
| been given up for lost, but three quarters OF Al
hour before It sank, he saw both Mr. Caller ant
his wife In their state room. Another witnes
said that after the ship had gone down he saw he
in the water, cllnging to a spar, but Mr.. Gallie
| he did not see anywhere. Another testified tina
he found her in the water, and three times tried t.
help her into the life-boat, but that each tim'
the boat capsized, and that the third time sh'
sank aud did not reappear. In contradiction
| to this witness two persons testified that the!
had seen the woman who was being helped int
the lfe-boat, and that IL was not Mrs. Gallie
The question Of survivorship, as mixed ques
tion OF law and fact, was left To the jury undo
| the instructions of the court, and after a YER
| brief deliberation they returned verdict 70
the defendants.
The only case Of the kind that has receive,
consideration In the courts of New York wa
that Of Moehring agt. Mitchell, reported in tn
first volume OF Barbours Chancery reports. Ii
May, 1910. Mrs. Isabella Leo Wolf, procured
policy OF insurance upon the life Of her HUSBAND
for S5,1D In the New York Life Insurance AM
| TRUST company, when, IN the event OF he
| death before her husband, was to he pat
| upon his deceaso to her children. In March
ls4l, she sailed with her husband and her onl
child. an infant daughter, in the steamshi
President. for Europe. The vessel was neye
aftcrward heard Of, nor any evidence eve
found To tell Of the circumstances OF her los
| The executor OF a will that had been made b
Mrs. Wolf thereupon sued for the amount q
the policy upon her husbands life, and in thl
action. which mainly turned upon the power q
a married woman to make will under certai
circumstances, Chancellor Walworth cursoril
examined the law of suryivorship, deciding tina
In New York there no legal prosumptio
that minor daughter survived her mother, ,
n wife her husband, but intmating upon III
authority Of a number of English cases, that a
between husband and wife, were IL nccessar
to decide that point, the presumption Of SUI
worship should be in favor of the man, rs III
stronger of the two.
This case cannot he considered very author
tatiye upon the law Of surYiVorshp and
leaves the subject nearly an open one for adj
dicatinn In this state. The Chaucrllurs ve'
of the law Of England was certainly barrel
warranted 10y the reported decisions OF the Enl
lish courts. In one case tried in the king
Bench in 1867, in which "A father and hi. dauEl
ter were lost In the same vessel. Lord Mahshri