The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-05-02
Peculiar Renaissance of the Steamship
Schiller Disaster.
! QUESTION OF SURyIvORSHIP.
Musical Engagements and Mana
gerial Inconsistency.
POOR PETER REUTER-.


~ Walter died on tho 7th OF October. 1870. She let
her surviving husband, Charles W. Walter and two
children, Mary X Walter and Joseph X. Walter, both
infants, under the age oil twenty-ono. Mary Ridgway
her mother, also survived her The mother, husband
and two children were passengers on tho steamer
Schiller, which sailed from tho city OF New York
voyage TO Europe or about tho 7th OF April 1875
The ship sank and lost on or about tho TIN OF
May, 1875, tho Sicily Islands, England, and all
four persons named pershod in the catastrophe The
mother was about sxynine years OF age, tho husband
iorty-ve. tho daughter, Mary r. about ten, and tho
son, Joseph about years Of age. There was no
evidence that there any survivorship among the
four persons named By her last will Elizabeth NJ.
Walter wiie OF Charles W., bequoathod her resduary
estate both real and personal hor trustees named
OF whom her husband was ono, In fec simple, and Of
absolute property In trust however, TO set apart, SELL
mortgage or otherwise dispose OF the same as they
might deem ADVISABLE and to invest the proceeds
10 make two funds Of $f5,000 each and one fund OF
$50 600 to be held by them in trust tho increase OF
one Of such funds Of $4,000 TO be paid by the
semiannually to the daughter OF the tesatrx during
hcr natural life, the principal fund paid her
death to the heirs OF the daughters body then living
snd In default OF such heirs living, to whom tho
daughter might appoint by her last will testament
discharged OF all further trust, default OF heirs
Of the daughters body living at her death or OF
any appointment the remainder over to the heirs
o the body OF the testatrix then living and In default
of heirs VI the body ofthe esatrx then living the
limo Of her daugnters death, the remainder over to
the children or heirs OF Frederick A. Ridgway, Moses
kdgwav, John Gum aud Henry Gum, discharged OF
all further trust The income OF the other fund OF
$4,000 was directed by the will 10 be paid by the
trustees semi-annually 10 the Of the tcstarix dur
Ing his lifetime; the principal OF the fund, the
Of hts DEATH follow the same course as that provded
for in relation TO bis sisters share The income OF tho
fund OF $50 900 10 be paid by the trustees semi
annually to the husband Of the testatrlx during his
IL no mr. cnal nj hta 10 I'm
heirs Of the body of the testatrix, aud in default OF
such heirs tho remainder TO go as the other
surviving executor aud trustee under tho will,
Samuel Newell whereby, among other things. he
points arising under the will, and the construction
thercof and that II DO determined whether mother,
same Time or whether either, and which OF them,
vlved the others, and the order IN which they died
whether, as matter Of law either, and which Of said
dren or heirs Of Frederick Ridgway, Moses Ridgway,
John and Henry Gum take per capita or per stripes,
Ind 10 what proportion or shares or how to whom
the estate shall pass under the will. The executors
and administrators OF the deceased husband. mother
were also tho Children and heirs Of Frederick and
Noses Rideway and John and Henry Gunn noariy
81 George u % are Ss
ker, henry Araen, George G. Blank and
John A. beady, as counsel; p,ainla is re-
The case was submitted to Judge Van Worst, who
oered his decision yesterday. The decision OF great
stAtutory-appcable to survivorship and the
struction of the will Its leading points, applicable
italy as follows whether the remainder over 10 the
children or heirs OF Frederick A. Ridgway, Moses
Rdgway and John and Henry Gum has become
wholly legally vested in them in possession depends
upon the determination OF the question to whether
Or not there was any survivorship between the two
children the mother ana husband OF tho esatrix, who
we're drowned with the sinking Of the steam
snip Schiller. II they all died in the
same moment, then neither OF the children
the testatrix lett hoirs Of their bodies
living, and tho romainders IN question, in their
entirety by the express terms Of the VIII vest in the
children or heirs OF the persons above named. Ques-
lions Of doubt and perplexity have often arisen with
regard TO the title to property aud the distribution OF
estates where several persons upon the survivorshp
Of one OF whom the question rested have persisted in
the same calamity such as shpwrcck or battle, and
where there was no evidence as TO who died FIRST Tho
civil law considers questions OF this nature, and has
enumerated certain rules dcduced from probabilities
arising from the age and difference Of OF The par
ties. II the persons perishng unoer fifteen tho
oldest was presumed to survive. II all were above
.ixty The youngest was presumed TO have survived
The French code recognizes presumptons OF
survivorship growing out OF tho ages and sex
Of persons perishing In common disaster
BY the law OF India where relatives perish thus
together II is presumed they all died at theN,samc
moment and the property Of each passes to his living
heirs, without any portion OF vesting his compan
Ions in misfortune BY the civil code OF Holland IN
the absence oil evidence II presumed that all persons
die together at the same moment and that there IS no
transmission or succession from ono In favor OF tho
other. The English common law has never adopted
these provisions II requires the survvorship OF two
any arbitrary rule or prescribed presumption. IL
would seem to be unsafe TO rely upon any presumption
arising either from or with regard to
ship Of persons exposed TO common peril by tho sink
ing OF ship IL is true that might by strength
and powers Of endurance survive the other,
but the strongest might perish first. Expe-
rience In such cases shows that no rulo
can Lc unaterably adopted to determine survvorshp
Sir John Nic0ll held that the burden
the person claiming dcrlvativey from the residuary
lcgatee to show that tho testator left rcsiduary
legatee. When, therefore, says Mr. Best q party on
individual over another has other evidence
than the assumption that age sex one lndivid-
ual have struggled longer against death than his
companion, ho caunot succeed. But, on the other
hand. Is not correct to suppose that the law pre-
sumes both to have persisted nj the same moment.
This would be essentially an ARTIFICIAL presum ption
sgnnst manifest probability" And the
American cases. limited In number, arc substan-
hally 10 the effect In the
case at bar, there being no legal presumption OF
by one chd to tho other. and under the authorities
citcd the burden OF establishing survIvorship rests
upon the party who claims any portion OF tho estate
through such iactsf Alter extended discussion Of
Tho FACTS presented and the law applicable to thcn
Judge Van Worst holds that the heirs claiming through
the children had iaed TO prove IA survivorship; that
the heirs OF the RIdgways and tho Gums take under
the prov Of the viii; that there IL no tbo
con version OF the real estate and tho occ OF trustce
Is ut end that tho OF kin OF the children and
husband oil the deceased entitled TO interest 81 the
ratio OF Six per cent on the respective shares intended
for the husband and children, from the time OF tho
death OF the esator TO the time oil tho death Of her
husband and children, and that there must be refer
enco to ascertain the valuo oi the real estate
DISCORD IN MUSICAL CIRCLES.
Pietro Baccc Is by profession n singer. lilo states
IN an AFFIDAVIT presented TO the Court or Common
Pleas on application for order OF arrest against
Max Strakosch, that the 18th OF February he
entered into an agreement with the strakosch Com
pany to 60 TO Philadelphia sing performances
10 DO gwen by tho Italian Opera Troupe In that city
the 2lst and 23d OF February. ard he agreed pay
Baccei $3.50 Tor tho performance and gave him check
Tor $50 account Baccei went 10 Philadelphia ana
told straxosch that ready 70 sing on tho 2ist
In accordance with the agrecm.nt, but mucn to his
surprise latter informed hin that he would not re-
qurc his services until the 23d On the last mentioned
day, with malice Gus intent, be caused Baccei to DO
arrested Philadelphia on false charge |
OF tmbczzng 500 Ito was confined for threc hours.
After several aujournmoDts OF the hearing and |