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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 83 The able and elaborate opinion delivered by Judge VAN VORST, who tried the case at Special Term, renders it unnecessary to elaborate the questions involved. I have examined with care all the points presented, and I concur fully with the opinion upon all of them, and with the views expressed therein.
The principal points decided are: 1st. That the appellants who claim through a survivorship must prove the survivorship. 2d. That there is no presumption in law of survivorship in the case of persons who perish by a common disaster, as in this case, by shipwreck, without other evidence tending to prove the fact, and hence that the party upon whom the onus lies fails to establish it. 3d. That the property never vested in the children, but the title remained in the trustees until the death of the children, that the trust was an active one and valid, and title was necessary to its execution. 4th. That there was not an equitable conversion from real to personal estate at the death of the testatrix, the power to sell being discretionary. 5th. That the remainder over was *Page 87 a conditional limitation, and not a condition precedent, and that the intent of the will was that it should be effectual if for any reason the children could not take. 6th. That the death of the children without issue or appointment, under the circumstances developed without evidence of survivorship, establishes the title of the persons to whom the remainder is limited, and entitles them to have the limitation carried into effect.
I should be content to adopt the opinion without further remark but for considerations which have suggested themselves to some of my brethren in respect to the question of survivorship, as applicable to the position of the appellants, which will be briefly noticed. The suggestion, as I understand it, is, that conceding the burden of proving survivorship to be upon the appellants, and that in this case there is no presumption that either particular child survived, yet as the law will not presume that they died at the same time, a presumption may be indulged that there was a survivor, and that it makes no difference which child survived as he would inherit the share of the other, and create a new line of descent for that share which would embrace the appellants. This of course would affect but one of the children's share, or one-quarter of the estate. The suggestion although apparently plausible in statement, cannot be sustained.
In the first place assuming such a presumption, it may be observed that the appellants are required to prove their right or title. Can a party successfully claim that as he is entitled to one thing or another, and as they are alike he will take either? It is an accidental circumstance that the shares of these children were alike in amount or kind. Suppose they had been unequal in amount, or that one had been in land, and the other in money, could the appellants have claimed either? Clearly not. As to the daughter's share there was a failure to prove a title because it does not appear that the son survived the daughter, and the same is true of the share of the son. The appellants hold the affirmative, and must establish their title to some specific share or interest *Page 88 which they fail to do by an alternative claim. As they cannot claim either have they not failed as to both? A somewhat similar point, though upon a different ground was presented in Wing v.Augram (8 H.L., 183). The estate was limited to one Wing upon certain conditions in the respective wills of husband and wife, who were lost at sea. The husband gave everything to the wife, and adds: "And in case my wife shall die in my lifetime * * * then I give all my estate to William Wing." And the wife gave everything to the husband, and stated, "and in case my husband should die in my lifetime, then I devise, bequeath, and appoint the said property to the use of William Wing." Wing claimed under both wills, but the court denied his claim under either, because he could not prove that either husband or wife survived. It is true in that case that the wills created a condition precedent, but as the condition was the same in each will the ultimate legatee claimed under both on the ground that it was immaterial which survived. Lord CHELMSFORD, in answering this point said: "If different persons had been entitled under the two wills, each must have established his claim solely by the will in his favor, independently of the other, and no difference can be made in the rules of evidence, because the appellant accidentally happened to be the ultimate legatee in each will." The claim was not predicated upon the presumption of a survivor as here, but upon a unity of rights and interests, as legatee under both wills.
I do not think an alternative claim can be sustained, conceding the presumption of survivorship. However this may be, a decisive answer to the suggestion is, that there is no legal presumption which courts are authorized to act upon that there was a survivor any more than that there was a particular survivor. It is not claimed that there is any legal presumption that the children died at the same time. Indeed it may be conceded that it is unlikely that they ceased to breathe at precisely the same instant, and as a physical fact it may perhaps be inferred that they did not. But this does *Page 89 not come up to the standard of proof. The rule is that the law will indulge in no presumption on the subject. It will not raise a presumption by balancing probabilities, either that there was a survivor, or who it was. In this respect the common law differs from the civil law. Under the latter, certain rules prevail in respect to age, sex, and physical condition, by which survivorship may be determined, but nothing can be more uncertain, or unsatisfactory than this conjectural mode of arriving at a fact, which from its nature must remain uncertain, and often upon the existence of which the title to large amounts of property depend. In the language of the Lord Chancellor, inWing v. Underwood (4 DeGex, M. G., 633), "We may guess, or imagine, or fancy, but the law of England requires evidence." There are cases where a strong probability in theory at least would arise, that one person survived another, and perhaps as strong as that that there was a survivor, and yet the common law wisely refrains from acting upon it in either case. It is regarded as a question of fact to be proved, and evidence merely that two persons perished by such a disaster, is not deemed sufficient. If there are other circumstances shown, tending to prove survivorship, courts will then look at the whole case for the purpose of determining the question, but if only the fact of death by a common disaster appears they will not undertake to solve it on account of the nature of the question, and its inherent uncertainty. It is not impossible for two persons to die at the same time, and when exposed to the same peril under like circumstances, it is not as a question of probability very unlikely to happen. At most the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life struggle one or the other may not have ceased to gasp first, especially when the transmission of title to property depends upon it, and hence in the absence of other evidence the fact is assumed to be unascertainable, and property rights are disposed of as *Page 90 if death occurred at the same time. This is done not because the fact is proved, or that there is any presumption to that effect, but because there is no evidence, and no presumption to the contrary. The authorities are uniform upon this doctrine, but the expressions of some of the judges in announcing it are liable to be misunderstood as indicating a presumption of simultaneous death which is not the rule. For instance, Sir WILLIAM WYNNE said: "I always thought it the most natural presumption that all died together, and that none could transmit rights of property to another." (Rex v. Heass, 2 Salk., 593; 2 Phill., 296, notec.; 5 B. Ad., 91, 92.)
Sir JOHN NICOLL said: "I assume that both perished in the same moment. (Taylor v. Diplock, 2 Phill., 261.) In the Matter ofSelwyn (3 Hagg. Ec. R., 748), the court said: "But in the absence of clear evidence, it has generally been taken that both died in the same moment." Sir HERBERT JENNER said: "The parties must be presumed to have died at the same time." (1 Curties, 705.)
These expressions only mean that as the fact is incapable of proof, the one upon whom the onus lies fails, and persons thus perishing must be deemed to have died at the same time, for the purpose of disposing of their property. The Lord Chancellor inWing v. Underwood (supra), recognized the distinction, and explained the meaning of the rule. In commenting upon a similar expression of the Master of the Rolls to the effect that he must assume that Mr. and Mrs. Underwood both died together, the chancellor said: "From personal communication with his honor, I know that he is not aware that he ever used such an expression, and all he ever meant to say was that the property must be distributed just as it would have been if they had both died at the same moment." And Mr. Best in his work on Presumptions, after laying down the general rule, states, that it is not correct to infer from this that the law presumes both to have perished at the same moment, and adds: "The practical consequence is however nearly the same, because if it cannot be shown *Page 91 which died first, the fact will be treated by the tribunal as a thing unascertainable, so that for all that appears to the contrary, both individuals may have died at the same moment."
All the common law authorities are substantially the same way, and the rule, which I think is wise and safe, should be regarded as settled. Its propriety is not weakened by the circumstance that its first application in this court prevents this estate from being turned into channels never contemplated or intended by the testatrix.
The judgment must be affirmed.
All concur, except MILLER and EARL, JJ., absent at argument.
RAPALLO, J., concurs in all except as to survivorship between the two children, and as to that does not vote.
Judgment affirmed.