The testatrix left personal -property only.- She left neither parent nor descendant surviving her. 'Both - she and "her husband were victims of the disaster which resulted in the burninsr- and *441wreck of the steamer General Slocum on the forenoon of June 15, 190.4. Her body was recovered on the day óf the accident, and that of her husband about one week afterward. The question chiefly . litigated in the court • below, and the only one presented on this appeal, was whether thére was evidence sufficiently establishing the fact that her husband survived her. The learned surrogate has found that there was not sufficient evidence to establish survivor-ship of the husband, and has ordered distribution of the estate on the theory that they perished together.
The burden of proof of survivorship rests on the appellants. The law is settled in this State that there is no presumption of survivorship in the case of persons' who die by a common disaster. In the absence of satisfactory evidence, the fact is assumed to be unascertainable, and the property rights are disposed of as if death occurred at the same time, not because of the presumption of siinultaneous death, but because of. the absence of evidence or presumption to the contrary. (Newell v. Nichols, 75 N. Y. 78. See to like effect St. John v. Andrews Institute, 117 App. Div. 698).
I think the evidence very clearly establishes the fact that the testatrix died before her husband. The boat took fire while proceeding up the East river, at some point below One Hundred and Thirty-fourth street, and between One Hundred and Thirty-fourth and One Hundred and Thirty-fifth streets passengers were seen jumping or falling into the river. Mrs. Gerdes was one of the first, and her body, if the identification is sufficient, was brought ashore and laid upon a float at the foot of One Hundred and Thirty-eighth street, while her husband was standing on the hurricane deck where ' he remained until the boat was beached and went to pieces .at the “ Sunken Meadows,” near Horth Brother island. That Mr. Gerdes remained alive upon the boat until it was beached is undisputed, and . the controversy accordingly depends on the question whether the ' body on the float referred to was that of Mrs. Gerdes.- A yachtsman, named Orth, who was rowing a skiff at the time the fire broke out, picked up and brought to the float three bodies, one a middle-aged woman, one a gray-haired woman, ;about -seventy years old, ■ that being the age of Mrs. Gerdes, and a baby, They were • the first bodies brought ashore. He brought them ashore dead, as I have said, some little time before the Slocwm was finally beached. *442They were laid out on' the float and shortly .afterwards delivered by him to a Mr. Daub, by whom they were in turn transferred to .the police, -and by the police taken to the Alexander avenue station house. . The. bodies were removed from the station house to -the» . morgue on the afternoon of "June fifteenth, whence the one identified as tliat of Mrs. Gerdes was taken by her family on the next • day and buried. Orth described the woman of seventy, but he was not acquainted witli Mrs. Gerdes, and could not recognize the body as hers from a photograph exhibited to him upon the trial. ' He testified that “ she had some of the features of it, but I could not swear it was the same person, because in a case like that there was a great deal of excitement around.” Daub, however, described the body . very minutely. On being shown the photograph of Mrs. Gerdes, he s.aid/that it-resembled the woman a great deal, and added: “I could swear that that is the woman.” Christian D. Poste!, a son- . in-law of Mr. Gerdes, went to the Alexander avenue station house , on the afternoon of June fifteenth and there identified the body in question as that of Mrs. Gerdes. He went to the morgue the next day, found the same body, identified it as the- same and had it removed to her home by the undertaker. Daub testified that when the body was taken from.' the water there was a scratch or cut at the • side of the, head on the forehead, and that he remarked at the time . that she had been hit by something.. ' The mark was on the right side. Christian D. Postel also described the mark as existing when lie first saw the body at the station- house. Hé said She had a scar about a trifle over an inch long right over her right temple near the right ... eye.” But this evidence was given by him on re-examination after • . Daub had testified. The learned surrogate regarded it as a suspicious circumstance that he had not referred to the scar or cut on his first examination, but his attention had not then been specifically called to it, and it is plain, that it could have no significance to him as a mark of identification. Mrs. Gerdes bore no such mark in her lifetime, and the identification by this witness was from her features and her clothing. As the body had been in the water only a'few minutes, I do not see, aside from the aid of voice- and expression, ho.w the process of identification could have been much more difficult than it would have, been if Mrs. Gerdes had returned home from the accident, wet from the immersion but uninjured. *443It may be assumed that a man can recognize liis mother in-law when he sees her.. Some .effect was given by the surrogate to the fact that Mr. Postel, when first on the witness stand, replied, in answer to a question,. that the face of the deceased was not injured in any way. I do not think his evidence then given militates at all against his subseqxxent assertion that the body bbre the exit alluded to when he found it at the station bouse. The evidence given by him was as follows: “ Q. Was her face battered in any way? A. Ho, six. Q. So you could plainly see who it was by her features? A. Tes, sir.” The witness inight very well overlook the existence of this slight scratch, not regarded as a mark of identification at the time he first saw it, when asked if the face or features were so battered as to be unrecognizable.
But there, is considerable other evidence tending to establish the fact that the body did exhibit the scar in question. The brother of Mr. Postel, who viewed the remains when the body was brought to the house, testified that there was a bruise at the side of the face . around the temple. The undertaker swore that he saw the cut on the side of the face just above the eyebrow, and stated that it was about an inch and a quarter long. The lady who prepared the body for burial testified that she saw the cut; that it was-a slight one; that she thought it coxild be covered with powder so.as not to be .noticed, and that she obtained some powder and xxsed it for that purpose, so that the-mark was practically obliterated. As against this evidence there is only the testimony of two ladies, each of whom stated that she did not see the bruise or cut. There was other evidence given on behalf of the respondents which may Jba regarded as somewhat material, but certainly not as controlling. But in the absence of any evidence tending to indicate that the body received from the morgue was not that which was brought to the float, the time of the death of Mrs. Gerdes must be deemed to have been established as prior to that of her husband, so far as could be. expected of human evidence in the circumstances.
There was one other feature of identification which has some force and significance. Mrs. Gerdes was in the habit of wearing a .rubber stocking, and learning fx;om his'wife, Mrs. Gerdes’ stepr "daughter, that she had it on on the occasioxi in question, Mr» Postel had the fact verified before the removal of the body from the *444•morgue. lie testified as'follows: “ Q. Tlieré was-no necessity of referring to such .things as rings on .the finger, or some peculiar birth mark on some part of the body, was there % A. No, but, to ■ make swre, Mrs. Gerdes had always worn a rubber stocking ; I went and asked her daughtér if she had one of, those ón ; so I came back again and I asked the lady there if she would kindly lo'ok to see if she had it on. Q. Did she have it on ? A. Yes, sir. Q. Was this body that you have, seen on those two occasions the body that was brought by you to the'home? A. Yes¡ by the undertaker. Q. It was buried as the body of Mrs. Gerdes ? A. Yes.”
There is other evidence in the case which tends to some extent to support the claim that Mrs. Gerdes either juriiped or was thrown into the water and was drowned while her husband was still alive. One of the witnesses who knew them both testified that as the boat was going up the river before the fire she saw them sitting on the middle deck, just under the hurricane deck, close against the rail, ■ on the port or Manhattan side of the boat, “ right alongside of each other.” - Mr. Gerdes was an old man of eighty.. There is no question about the identification of both of them at that time. They were only six of eight feet away from the witness, and a lady friend ■ who was with her went over to see them, saying that she was going over to speak to Mr. and Mrs. Gerdes. 'She did as she said and. after seeing them came back and sat with the witness. Another witness testified that shortly after the fire broke out she saw Mr. Gerdes standing on the hurricane deck, all alone. That was the last she saw of him before the boat was beached. She had known him from ,her childhood. It is true that she was not acquainted with Mrs. Gerdes, but she knew that Mrs. Gerdes was on the excursion. Being shown the photograp>h of Mrs. Gerdes,'she testified that she did not recognize any person on the hurricane' deck of whom that was a portrait. She testified that at the time when she last saw him the fire was pretty well advanced, that he was. standing on the left side- of the deck, looking towards the fire, standing in a dazed way with an umbrella in his hand, and that- “ there was nobody around him.” ' ■ . .
An. old man and an old woman, husband and wife, sitting together at the commencement of such a disaster, would be unlikely to part company unless by stress of the calamity. The evidence' of these *445two witnesses indicates that something must have happened to Mrs. G-erdes to prevent' her from going upon the hurricane deck with her husband, and the other proof in the case tends to establish 'that the thing which happened was that she had fallen or was thrown, in to. the water and that her lifeless body was on the float at One Hundred and Thirty-eighth street while her husband was standing' alone upon the hurricane deck awaiting the final wreck.
The decree should be reversed, with costs to the appellants payable out of .the fund, and the proceedings remitted to the' Surro- • gate’s Court for distribution of the estate , on the theory that the testatrix left her husband surviving her.
Woodward, Jenics, Hooker and Gaynor, JJ., concurred.
Decree of the Surrogate’s Court of Kings county reversed, with costs to the appellants payable, out of the fund, and proceedings remitted to the Surrogate’s Court for distribution'of the estate on the theory that the testatrix left her husband surviving her.