The National tribune. [volume] (Washington, D.C.) 1877-1917, 1901-10-10
DEPARTMENT NEWS.

ACCRUED PENSI0N-PRESUA
TON OF DEATH.-In the claim of the
widow of Nicholas J. Schrater for the
accrued pension due the soldier, it is held
that 1.-The date of the soldiers death be
ing material in a claim by an alleged
widow for his accrued pension, it must
be satisfactorily established by distinct
proof, and may not be established by gen.
eral presumption merely, under the rule
as to presumption of death from seven
years unexplained absence" Oavie V.
Briggs, 81 U. S., 62S)
The widow has been pensioned under
the act of June %, 1890, the soldier s
death being presumed in accordance with
the act of March 10, 1896. On appeal it
was contended that his death should be
presumed to date from the time of his
absence, continued and unexplained" The
decision says: 1T can not, however, be
presumed that the soldier died June 3,
1899. Such is not the force in law of
the presumption of death of party. The
law is that the person shown not to have
been heard of for seven years by those, if
any, who, if he had been alive, would nat
urally have heard of him, is presumed to
be dead, unless the circumstances of the
case are such as to account for his not
being heard of without assuming his
death
This is the general rule of law, as held
In Davie V. Briggs (97 q. S., 62S), and
has been held by the Department in
number of cases to have received for pen
sionable purposes, a legislative restate-
ment by the act of March Is, 1896, and
to be, therefore, in force in pension ad-
publications.; said act reading as follows:
That in considering claims filed I'M
der the pension laws, the death of an en-
listed man or officer shall be considered
as sufficiently proved if satisfactory evil
dence is produced establishing the fact of
the continued and unexplained absence of
such enlisted man or officer from his home
and family for a period of seven years,
during which period no intelligence of his
existence shall have been received
'It is further stated in the case of
Davie V. Briggs to be the law that this
presumption relates only to the fact and
not to the time of death, and that when
the latter fact is material to the issue in
any case it must be proven; and quotes, as
the leading English case on this point,
Nepean V. Doe dem. knight, 2 NJ. & W.,
S94), as follows:
1--WE adopt the doctrine of the court of
Kings Bench that the presumption of
law relates only to the fact of death, and
that the time of death, whenever it is ma
terial, must be subject of distinct proof
"And the court, in Davie V. Briggs,
adds: To the same effect are Mr.. Green
leaf and the preponderance of authority
in this country citing ! Greenl. Ev., sec.
Al, and many American decisions.
I'm Stephens Digest of Evidence, Art.
Do, also, the rule is stated that
There is no presumption as to the
time when he (the person presumed dead
died, and the burden of proving his death
at any particular time is upon the person
who asserts it,
In the case of Nepean V. Doe, supra.
the court stated further that
Inconvenience may no doubt arise,
but they do not warrant us in laying down
rule that party shall be presumed to
have died on the last day of the seven
years, which would be manifestly contrary
60 the fact in almost all instances
And also, in Spencer V. Moore al
lred., n. c., 160), the court stated:
The presumption does not extend to
the death having occurred at the end or
any other particular time within that pc
riod (seven years., and leaves it to be
Judged of as matter of fact according
to the circumstances which may tend to
satisfy the mind that it was at an earlier
or later day.
Ger V. Roper Q3 Ired.. 1888, and is I'M
questionably the present law of the Amer
lean as well as of the English courts.
Following the settled law on this sub
ject, therefore, it must be held herein
that rejection of the appealed claim for
accrued pension was proper, the evidence
in the case wholly failing to establish any
date of death of the soldier, who is merely
shown to have never been heard of since
June 8, 1889, when he left his home in
New York ostensibly for the West, in
tending to take up Government land in
Montana or California.
Rejection of claim is affirmed accord
tngly."