(concurring). I concur in the order of affirmance. The plaintiff (appellant) predicated its right to the legacy in question upon the ground that the legatee died before the death of the testator. As I understand the law, it beeamo necessary for it to establish that fact notwithstanding the presumption of death arising from an unexplained absence for over seven years. The rule in that regard is quoted with approval by the Supreme Court from Taylor’s Treatise on the Law of Evidence (1st Ed.) § 157, as follows: “ * * * If anyone has to establish the precise period during* those seven years at which such person died he must do so by evidence, and can neither rely, on the one hand, on the presumption of death, nor on the other, upon the presumption of the continuance of life.”
This decision participated in by Justice Field, who was then a member of the Supreme Court, is at variance with his decision rendered as Circuit Judge quoted in the main opinion. Montgomery v. Bevans, 17 Fed. Cas. 628, No. 9,735. There Judge Field held that there was. a prima facie presumption that a man who disappeared was alive at the time of the grant made to him by the alcalde at a date within the seven-year period after his disappearance. As Judge Field, however, held that the presumption of life was overcome by evidence in the ease, his conclusion that there was a prima facie showing that the grantee was alive at the date of the grant was not controlling in the case. I do not wish, therefore, to be understood as accepting the doctrine laid down by Judge Field in Montgomery v. Bevans, supra, in view of his later repudiation of that doctrine in Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086.
The opinion of Chief Judge Cranch of the Circuit Court of the District of Columbia (Moffitt v. Varden, 17 Fed. Cas. 561, No. 9,689), cited in the opinion of the majority, was not concurred in by either of his two associates, and therefore not the opinion of the court. The entire sentence from which the excerpt in the opinion is quoted is as follows: “In analogy to the statute of bigamy, the presumption of death arises if seven years have elapsed since the party has been heard of; so that it may be presumed that he died in the beginning of the year 1827.” (The party had not been heard of since 1820.)
However, the Supreme Court of Oregon, in Arden v. United Artisans, 124 Or. 225, 233, 264 P. 373, 375, without" any discussion of the subject, stated the rule to be as follows: “But there is another presumption that, having been alive on the 1st o£ October, he might have been alive every day until the 7 years had expired, unless there is some testimony tending to indicate an approximately earlier date of death.”
That statement is not particularly persuasive in view of the fact that the court held the evidence sufficient to show that the death occurred about the time of the disappearance. Moreover, the burden of proof of the time of death in that case was upon the plaintiff.
1 concur for the further reason that in my opinion the decree of distribution distributing the legacy to William was a conclusive determination of his right to a legacy and that the assignee of the residuary legatee cannot go behind that decree in this proceeding. State v. O’Day, 41 Or. 495, 69 P. 542; State v. Finnigan, 81. Or. 538, 160 P. 370.
One reason T do not concur in the main opinion is that I cannot agree with the construction placed upon the pleadings. The ultimate fact for determination is the question o£ the date of the death of William Worrall. I think the allegation that he died on or about April, 1922, is an allegation of the ultimate fact, and that the allegation of his disappearance is an allegation of evidentiary matter, but I agree with the conclusion of the majority that, in view of the attitude of the parties toward the pleadings and their position in this court, we are justified in the conclusion that the appellee relies exclusively upon the facts alleged in the petition to establish the ultimate fact of death.
I concur in the judgment of affirmance.