I trust the majority opinion will not be read as suggesting that the so-called presumption of death fixes the time of death as at the end of the seven-years period. Under the circumstances stated in the opinion the fact of death may be established, but, as I understand the law, not its date; that must be fixed by a further inference to be drawn from those circumstances or others in evidence. Davie v. Briggs, 97 U.S. 628, 634; Hancock v. American LifeIns. Co., 62 Mo. 26, 30; Nepean v. Doe d. Knight, 2 M. W. 893, 912; In re Phene's Trust, L. R. 5 Ch. App. 139; In re Rhodes, L. R. 36 Ch. Div. 586, 589. For that reason the presumption has little value as determining the right to recover upon an insurance policy running for a limited period. Re Craufurd's SettlementsTrust, 2 T.L.R. 492. Nor can I read the correspondence between the attorneys for the plaintiff and the defendant as containing any express promise to pay the policy, even conditional, though one might well be implied from that correspondence. And I have considerable doubt whether the statute of limitations began to run from the death of the insured. The policy was by its terms payable "immediately upon acceptance of satisfactory proof of the death of the insured during the continuance of the policy." As no time for making such proof was designated, a *Page 284 reasonable time would be implied, and the statute of limitations might well be deemed not to begin to run until the lapse of that time. Spratley v. Mutual BenefitLife Ins. Co., 74 Ky. 443; and see 1 Wood on Limitations (4th Ed.) § 119. But this question was not presented by counsel and perhaps may fairly be regarded as not in the case in view of the fact that the policy expired on November 21st, 1917, that no recovery could be had unless the death of the insured occurred on or before that date, and that the action was not begun until 1927. It is difficult for me, anyway, to see how the statute could be relied upon. The correspondence between the attorneys for the plaintiff and the defendant certainly had the effect of waiving the implied condition that proofs of death should be made within a reasonable time and extended the period for such proofs at least down to the final letter of the company, written February 10th, 1927. I agree that the answers to the questionnaire submitted by the company was all the proof of death which under the circumstances could reasonably be made, and that document was received by it in February, 1925. The cause of action could hardly be deemed to have accrued before that time.
My dissent from the conclusion reached in the majority opinion is upon the ground that, as I view the case, it cannot reasonably be held that any diligent search was made for the insured after his disappearance. The plaintiff last heard from him after his arrival in Dayton, in August, 1909, by means of a post card, which gave as his address a certain hotel there. Thereafter, until she began her attempt to recover upon the policy in December, 1924, all she did was to inquire of his relatives and her own, all of whom lived in Connecticut, and of one friend of the family, to write to the Navy Department to ask if he had enlisted, and, *Page 285 in May, 1910, to write him at the address he had given her in Dayton, requesting that the letter, if unclaimed, be there advertised, which was done without result. All further inquiry made came after, and as a result of, her demand upon the company for the payment of the policy, which was made in December, 1924, fifteen years after the disappearance of the insured. Obviously the advertising of the letter in Dayton, without result, could mean at most only that the insured was not in Dayton in May, 1910. She neglected the natural and obvious step of writing to the hotel in Dayton which he had given as his address and to the factory where he had intended to seek employment, asking what was known of his stay there, and of seeking the services of the authorities of that city in attempting to locate him. It is quite possible that, had she done these things within a reasonable time, she would have received information which would have given a clew as to what became of him after he wrote the post card.