New-York tribune., 1896-09-27
THE QUESTION OF SURVIVAL
A PROBLEM SUGGESTED BY THE DEATH
OF MR. AND MRS. YOUMANS.
SOME INTRICATE POINTS OF LAw-pRECEpENrs
REGARDING THE sURvIvoRsHiP


REGARDING THE sURvIvoRsHiP
PRESUMPTION.
The will of Mrs Daniel D. Youmans was Of
fered for probate recently, and that OF her nus
band had been previously admitted to propa'e
by the Surrogate. Mr.. and Mrs. foumans o'eo
from an accident near Bergen Norway OH July
T. There was no eyewitness of the occurrence
but apparently the horse drawing the carriase
In which Mr. and Mrs. Youmans were seateu pe-
came frightened or the carriage broke and they
were both preciptated over cliff into iaNe
and died from drowning or injuries
Mr. Youmans. by his WILL left MS property !"
,r,st the income. or the larger part of 1t. to so
TO his wife for life At her death. the prihcipa'
was to go to Mr. Youmans's sons. BY Mrs. iou-
mans's will several beques's were made ana 'he
residue of the estate was given TO her h"soa"u
for life and at his death was to pass to relatives
~ Mrs Youmans The wills are so drawn tha'
Il Is not probable that any contest VIII "'ise
In many cases Of almost simultaneous oea'"' HI
tricate questions of law have often arise"' ""u
the subject Of the presumption OF s"rviNo''"p
C. ono ~ the most interesting of those discusseo
in the law books.
THE ROMAN LAW
The importance of ascertaining' II possio'e
which one Of two or more persons oieo ''''' "
common accident is frequently so great w"
large estates are involved, that. the o'u i'o'''"
law. the French code, and the statu'es VI 'o'
Of the States which follow the French Vi op""
,sh legal systems have estabAsheo aio''."i'
rules of decision. Under the ola hoi"ai
when persons Of different ages died III o"',i.
the presumption was that son sui'i'''
father. II the son had arrived at matuii'S' ""D
IN the other cases the younger OF TWO per so''
hou
,,e Younger was child. The law was a""p''.
.,o,,s circumstances as they arose ana
- ;,,r,cate questions were decided. In the
80 ,c5S q father and son perished In the '"'
.,a q, DUNES The daughter ana sis'ei o.
man of the same day became num- anu ~ ~
desd IN law The battle began at NOM,
mest,on arose as to the order in which ''e ,,
SONS died 1t was held that the uaus"''' .o
6rst because her vows. being Noiu''a'
,r,~,a,ad in a moment, while the other 'he"'
h.rs of the family might have hVeo ioi so
time after receiving their wounds. IL was 49,
following the Roman law, that the SOIL WV nav
arrived at his majority, surVlNeo '"e
CALIFORNIA; CIVIL CODE
,,,o civil code OF Napoleon contained eaoor-
.,e provisions for deciding which OF seNe'"'
sors survived when death was causeu ''
same occurrence. With some changes. n'
law has been adopted in Caiilo'"'a
Civil code provides as follows:
,,,, ,.o nersons perish in the same caiainify, ann
Wneh W. rpcL a hattie or "A confiagration ana IL
~ not shown who died first ana the,e an he in
ocular circnmS.dh circnrhp is presumed from the proba-
nut,ies resulting from the strths'"' "e
according to me who have pershed under
~, h 90 of ffeen years. the older Is presumed ~
hsVf IF bo,h We're the age of sixty the younger
is presumed have survived a tho other above
sixtv the former is presumed 10 nav S and the
II % podn a,frent 1r the male is presumed TO have sur
yived If the sexes be the same r 'e sivtv and the
o,har between those ages. the latter Is p'eH ~
have survived .I
The English and American courts ""0''
WAS no statute on the subject. nave gene az >
hold that there was no presumption aS " Wv
order of death among the persons WHO 'oS' ''' -
lives in a common accident 1hs RUE n"' "''
becn uniformly followed in England Inc ea'
,,as, cases and the latest ones however falr-
,v uniform in laying down this docrhne' WIN "
,s NOW, considered to be the English law OF 'he
h,oc, One of the most important cases was
,ha, 81 r-pderwood against Wing which arose
t,or tho death of Mr. Underwood. his VIE anu
,broa children. who embarked on snip TOT AUS
,ralia and were lost at sea. only one sailo' SUI
vivinC the disaster. The daughter II WAS a"o"
Inv the story of this sailor, survived io' " ''''''
after her parents but the Court heio 'i'"' '
,here was no evidence to show when OF 'ne o'"V'
members of the family lived the longer ''e'e
was no presumption as to Vhch was 'ho SUI
vvor ,. xopy DrcISION
NJ. loading case in the New-York courts Is
,,o, ~ Newell against Nichols N2 Hun "o4' u
w IS, Judge Van Worst rendered an opinion
=, tho snocial Term which was quoted IN 1uli pS
tho General Term justices, and Which II oho "
tho fullest and most careful reviews oi tle SUI"
,act Mrs Elizabeth NJ. Walter AT ner dea'il IL
1870 left will providing trust fund for hei
husband and young children. few years late'
HOY husband and the children ana the mo'hei VI
Nrs Waller were lost at sea In the accloeht u
tho steamship Schiller. There was no eNldehc'
A,,. which of those persons survived The
other. Judge Van Worst quoted all OF 'he r''s
,is. casas and held that there was no presump
,ion Of law arising from age or sex as 10 inc SUI
,-,-orship among persons whose death was oc
-. Ia, one and the same cause: nor 1;
,horo anv presumption that they did die al 'h'
-, ,,r,e and the burden of proof IS on the one
asserting the affirmative.
The most interesting cases arise "here 'nei'
"a come little evidence on the subject Whch MAY
ass;st the court In some degree IN arriving a'
decis,on II wounds have been ini1lcted' II ma!
he nossible TO ascertain by post mortem exam
ination whether the injuries inricteo upon CIV
would be fatal more quickly than those lh'lc'eo
,pon another Sometimes small circumstances
may be shown which may aid in reaching de
cision-
DEATHS IN DOUBLE MARINE DISASTER
one Of the most carefully considered cases Is
thai Of Pell against Balls Executors CheVes
EQUITY Reports), in which Chancellor tombstone
OF South Carolina wrote a long opinion. MT
and Mrs Ball and their adopted daughter
Emma. were passengers on the steamer Pulaski
which sank as the result of an explosion on
June a. 1898 BY the explosion a large mole