(dissenting in part).
I agree with much that is said in the majority opinion, but I do not agree that plaintiff is entitled in the circumstances of this case to recover all of the deceased’s unpaid retirement from February 1950 to February 1957. In order to recover on this basis the burden is on plaintiff to establish by competent evidence that plaintiff’s husband remained alive during the 7 years prior to 1957. The evidence is not sufficient to justify that conclusion.
On the other hand the admitted facts are not sufficient in this case to justify a finding that plaintiff’s husband died at any specific date prior to the end of the 7-year period. The burden is on plaintiff to establish her right to recover. In the case of Davie v. Briggs, 97 U.S. 628, 634, 24 L.Ed. 1086 (1878), the Supreme Court on the question of the 7-year presumption of death uses the following language :
“If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years. Mr. Taylor, in the first volume of his Treatise on the Law of Evidence (sect. 157), says, that ‘although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death; and, therefore, if any one 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.’ These views are in harmony with the settled law of the English courts. [Citing cases.]”
The other cases cited in the majority opinion on this point refer to veterans’ insurance cases under a specific statute which is inapplicable here. Therefore it follows that the evidence in this case is not sufficient to prove the death prior to the end of the 7-year period nor is it sufficient to prove that it occurred at any specific date during the 7-year period.
However, the evidence and presumptive facts show clearly that one or the other existed. In other words, plaintiff’s husband was either dead or alive during the 7-year period. That conclusion is inescapable.
Therefore it follows that while the admitted facts, which both parties agree are all of the known facts, do not establish either horn of the dilemma, they establish beyond cavil that one or the other existed. Therefore, plaintiff is entitled to recover on one or the other basis. Since neither one nor the other can be found from the facts presented, the defendant is entitled to have any judgment rendered in favor of the plaintiff on the basis of the lesser of the two amounts. It follows logically that plaintiff should be permitted to recover the death benefits of an unmarried widow during the 7-year period.8
*388I agree with the reasoning of the majority opinion that plaintiff could not have sued prior to the end of the 7-year period, at which time the presumptive death became effective. I agree, therefore, that plaintiff’s claim did not first accrue until February 1957.
I, therefore, would permit plaintiff to recover the unmarried widow’s death benefits for the entire 7-year period. The amount should be determined as in the majority opinion under Rule 38(c).
. Such death benefits are’in no sense pensions which are excluded from the jurisdiction of the Court of Claims by 28 U.S.C. § 1501 or excluded from the jurisdiction of the District Courts by 28 U.S.C. § 1346(d) (1).
It has been repeatedly held it was intended by the Congress merely to exclude the granting of pensions over which the United States Pension Bureau or the Veterans Administration has jurisdiction. Johnson v. United States, 111 Ct.Cl. 750, 79 F.Supp. 208 (1948) ; Lemly v. United States, 109 Ct.Cl. 760, 75 F.Supp. 248 (1948).
These are not pensions in the sense of sections 1501 and 1346, but are retirement matters and incidental death benefits over which both the Court of Claims and the United States District Courts have continuously exercised jurisdiction.
What they may have been called is not *388determinative. Even if it were a pension in fact, the plaintiff’s right to it has already been determined by the proper agency. The only matter left is the legal issue as to when the established obligation becomes effective.
In addition, the courts have uniformly held that when a court has legally taken jurisdiction of a subject matter it may retain it for the purpose of determining all phases of the case. There is no doubt that the court has jurisdiction of retirement cases which is the primary issue involved here. It may retain that jurisdiction to accord full justice and thus avoid a multiplicity of lawsuits.