The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1901-07-13
ARE THEY !! DEAD IN LAW /?
Novel Question for Judge
Nevius to Decide in the
McDevitt Case.

| Asuit in ejectment involving severa
interesting points of law was heard before
Judge Nevius in the Circuit Court yester-
| day afternoon.
| Two years ago this month Ellen Nc
Dewitt died intestate and childless, leav-
l'ing a house and three lots on Goth street
Bayonne Her husband, Daniel McDevitt
survived her.
| Recently Rose Lain, niece of the
| deceased woman, brought suit in eject.
ment against her uncle to obtain poses
sion of her aunt's property as her sole
| heir-at-law.
McDevitt, through ex-Judge Thomas =
Noonan, claimed that the plaintiff had nc
right to bring suit for the whole of the
property, because a brother of the de-
ceased woman had died in Pennsylvania
in 1867 leaving three children.
Through Counsellor VIM. Anderson, the
plaintiff tried to prove that these children
were dead. The defendant said he had
heard from them through a man who was
calling ON one of the daughters about a
year ago, and all three were then alive.
The main point raised by the defen-
dants counsel was that his client had a
curtsy or life intrest in his wife's estate
because she had child born alive about
year after they were marriedin 1871.
Proof of the child's birth, however, was
very meagre. McDevitt testified that six
months after his marriage he went to
Fort independence, Boston, leaving his
wife at home on Staten Island. She was
then with child and when, in response to
a message sent to him about five months
later, he returned home, he found his
wife sick and attended by a nurse and a
DIR. Wilkinson. He said he was told that
the child had lived but a few hours, and
had been buried in cemetery in Long
Island.
The plaintiff sWore that both the de-
fendant and his deceased wife had told
her that they never had a child. The
defendant explained this by saying that
he and his wife had agreed to keep the
matter secret and produced proof that
he had sought after the nurse and doctor
who had attended his wife, but found that
both were dead.
An interesting question raised by ex-
Judge Noonan was in relation to the pre-
sumption of a persons death who had
not been heard from for several years at
his last known place Of residence. This
was raised as to whether the Pennsyl-
vania heirs of Mrs. McDevitt were to be
regarded as legally dead according to the
evidence adduced.
The law says that where person has
not been heard of for seven years at his
last known place of residence he is pre-
sumed to be dead, and that presumption
once arising continues until proof to the
contrary is offered
The plaintiffs S witnesses said they had
not heard from the Pennsylvania heirs of
the deceased woman since a letter was
written by their mother telling of her hus-
bands death and the fact that she had
been left with three small children. This
was in 1867.
Ex- Judge Noonan contended that in or
der to make the presumption that these
heirs were legally dead it would have 20
be shown that they had not been heard
of at their last known place of residence,
and no proof had been adduced TO show
that they had even been inquired for
there He said it having been shown that
they were once alive, in the law they con-
tlnued to live until shown to be dead or
until some period of time beyond the
average mortality.
Judge Nevius reserved decision in the
case. In the meantime ex-Juege Noonan
has commenced proceedings in chancery
to have The title of his deceased wife's
property vested in her husband.