Seligman agt. Sonneborn. "Brooklyn Daily Times" newspaper contained an article of the killing of Claus Bulwinkel by Indians in the overland route to California. The article is headed More Indian massacres Murder of emigrants on their way to the Salmon River Mines," and is from the St. Paul Press, November thirteenth, written by a correspondent of the Mankato Record, William H. Sargent, who left that place in May before for the said mines, and who wrote from Rat river, in Washington territory, August eleventh. This gentleman describes and gives a detailed account of Indian outrages which he witnessed, occurring on the 9th day of August, 1882, upon two trains in motion about forty-five miles from Fort Hall, and fifteen miles from Rat river towards the fort. One of the trains which had come from Iowa city lost its commander, killed, and a gentleman from New York city by the name of C. Bulwinkel. (He had some cards of old date showing a former address to have been 374 Sixth avenue.) The correspondent further wrote, "we helped bury the dead.” Mrs. Gershe Bohlken and her husband, Henry Bohlken, both testified that they had not heard from the said Claus Bulwinkel since he left the city of New York, as stated, and that it was the common report and rumor that he had been killed by the Indians and was dead, as mentioned in the newspaper article. Another sister, Mrs. Dorethea Meislahn, wife of Albert Meislahn, testified that the cards found on the person killed by the Indians and buried by William H. Sargent, containing the words and figures "C. Bulwinkel, 374 Sixth avenue," describes her brother, Claus Bulwinkel, and that it was the general belief and understanding in the family that this was her brother. His heirs were as follows: The two sisters just named, John Meyer, his nephew ; Henrietta Barth, his neice, wife of August Barth; Matilda Van Axte, who married John Fink, and Augusta Van Axte, his neices; these four persons being children of Catherine Van Axte, deceased, formerly Catherine Meyer, a sister of Claus Bulwinkel, and formerly also Seligman agt. Sonneborn. wife of John Meyer, deceased, father of John Meyer, said nephew. They were all of age excepting Augusta Van Axte, who was eighteen years of age. There was no last will or testament of said Claus Bulwinkle, and no proceedings regarding his estate was ever taken in the surrogate's court, and he had never married. The first and principal question is as to the death of Claus Bulwinkel. Is the proof sufficient in law to show that he was dead on the 22d day of August, 1862, when the foreclosure suit of Cheesman against him was brought? The presumption of the duration of life, with respect to persons of whom no account can be given, has long been settled, ends at the expiration of seven years from the time they were last known to be living. Therefore, in the absence of all other evidence to show that the party, the period of whose death is under discussion, was living at a later period, there was fair ground to presume that he was dead at the end of seven years from the time of the last account of him (See Doe d. George agt. Jesson, H. T., 1805, K. B; 6 East, 80, cited in Wilkes agt. Lion, 2 Cow. R., 376; Same Case, 2 Smith's R., 236; S. P. Row agt. Hasland, 1 Bl. R., 405; Holman agt. Exon, Carth., 246). This limitation of seven years has been the law of the state of New York since February 6, 1788 (See 1 R. L., 103, sec. 1; 3 R. L., 167, sec. 7). An absence of seven years altogether accounts the absentees naturally dead (1 R. S., 749, part 2, chap. 1, tit. 5, sec. 6; 2 R. S. [Banks' 6th ed.], sec. 61, 1131). Section 841 of the Code of Civil Procedure has made provision in the same respect, and reads as follows: "A person upon whose life an estate in real property depends, who remains without the United States, or absents himself in the State or elsewhere for seven years together, is presumed to be dead in an action or special proceeding concerning the property in which his death comes in question, unless it was affirmatively proved that he was alive within that time." Seligman agt. Sonneborn. Thus mere proof of absence for seven years together establishes the presumption of death at the end of that time from the time of the last account of him. In Rowe agt. Haslard (1 H. Black, 404) it was decided "in making a title by pedigree, evidence that a man has not been heard of for many years is sufficient evidence prima facie to prove him dead without issue." In Lodyd agt. Hunt (4 B. & A., 433), where a tenant for life had not been seen or heard of for fourteen years by a person resident near the estate on which he resided, although not a member of his family, it is prima facie evidence of the death of such tenant. In Doe d. Benning agt. Griffen (15 East, 293) proof by one of a family, that many years before a younger brother of the person last seized had gone abroad, and that the reports of the family was that he had died there, and that the witness had never heard in the family of his having been married, is prima facie evidence that the party was dead, without lawful issue, to entitle the next claimant by descent to recover in ejectment. One of the most interesting cases and full of instruction upon this subject, is Eagle's case (reported in 3 Abb. Pr. R., 218, and decided by the learned surrogate BRADFORD in September, 1856) At page 221 he laid down the rule, quoting lord DENMAN: "It is true the law presumes that a person shown to be alive at a given time, remains alive until the contrary be shown, but when the seven years have passed, the presumption of law relates only to the fact of death, and the time of death, whenever it is material, must be the subject of distinct proof. Whoever finds it important to establish death at any particular period, must do so by evidence of some sort." On page 222 he quotes justice GIBSON, in Burr agt. Lewi (4 Whart. R., 150), denying the doctrine of lord DENMAN and stating the rule thus: "The presumption of death as a limitation of the presumption of life, must be taken to run exclusively from the termination of the prescribed period, so that the person must be taken to have then Seligman agt. Sonneborn. been dead and not before." The evidence shows that the last heard of Claus Bulwinkel, or rather the last account of him, was August 9, 1862, and thus the law would have presumed him dead on the 9th day of August, 1869, seven years thereafter, and the rights and relations of the parties affected by his life or decease would, in the absence of information, have been determined by the statutory presumption. It is of the highest importance, however, in this case, to determine the death of Claus Bulwinkel at a particular date or time, and for this purpose it is necessary carefully to examine the authorities and evidence applicable to this particular point. The fact of death, especially in the case of absent persons, is not always proved by the most direct testimony, but it is to be inferred from circumstances which either necessarily or usually attend such facts. The force and effect of the evidence is to be determined, and whether the circumstances are sufficiently satisfactory and convincing to warrant the finding of fact. It is well known that hearsay evidence of a fact is not admissible, and the same principle is applicable to statements in writing, but there is an exception to this rule with respect to the death of a person. Proof of a general report and belief of the death of a person is admissible. Thus it was decided in the case of Doe agt. Griffin (15 East R., 293), that the fact of a soldier, or any other individual, was missing at a particular time, accompanied by a report and belief of his death, must be in many cases not only the best, but the only evidence which can be supposed to exist after his death. In Watson agt. King (1 Stark., 121), where a vessel is proved to have sailed and has not been heard of for two or three years, it is to be presumed that she is lost, but at what time an individual on board of such vessel perished, is to be collected by the jury from the particular circumstances of the case. The burden of proof, of course, is upon the party who asserts the death, thus under plea of coverture where it appeared that the defendant's husband went abroad twelve years VOL. I 60 Seligman agt. Sonneborn. ago, it was held that she was bound to prove that he was alive within seven years (Hopewell agt. De Penna, 2 Camp., 113). The case of Jackson agt. Boneham (15 Johns. R., 226), decided in May, 1818, is a case in point as to the sufficiency of the evidence, both as to identity and death. The action was for ejectment. The letters patent were to "Moses Minner.” Ether Miner was called as a witness on the part of the plaintiff, who testified that she was a sister of " Moses Miner," who was by trade a gunsmith and lived at Stonington, Conn., and about the year 1774 went to sea. She also proved a letter from Miner to his mother, dated in New York in September, 1775, in which he says "he had got to be a soldier." She heard in 1776 that he was with the New York troops, but never heard from him again until fourteen years after the war, when she was told that he had been killed; that the general opinion in the family was that he was dead, and that he always spelled his name Minor and Miner and not Minner. The testimony as to the death of Moses, and his being with the New York troops was objected to as hearsay but was admitted There was contention as to the title by defendant upon affirmative proof by deed on his part. The verdict was for plaintiff subject to the opinion of the court which held that the name "Minner" was a mispelling, as it was not shown there was any man in the army by that name, and it could not affect the identity of the person; that the hearsay evidence was admissible to show his death and the place where he died. The case of Jackson agt. Eta (5 Cow. R., 314), decided in February, 1826, held that one who was missing at a particular time with a report and general belief of his death, is, it seems, prima facie evidence of his death; also proof that a man's intimate acquaintances for several years never heard him speak of his family, father, mother, wife or children, is prima facie evidence that he has no heirs, which is in point as to the evidence that the sisters of Claus Bulwinkel never knew him to be married. The decision in the case of Doe agt. Griffin (15 East, 293) was approvingly quoted by curia, per SUTHER |