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Argument for Appellant, Young Women's Christian Home.

American authorities as follows: In re Ridgway, 4 Redf. 226; Stinde v. Goodrich, 3 Redf. 87; Newell v. Nichols, 12 Hun, 604, affirmed 75 N. Y. 78; In re Hall, 9 Cent. L. J. 281; Johnson v. Merithew, 80 Maine, 111, 116; Cowman v. Rogers, 73 Maryland, 403; Ehle's Estate, 73 Wisconsin, 445, 459-460; In re Willbor, 20 R. I. 126.

Citing also where the testator and beneficiary having perished together, the property was distributed as that of the owner at the time of the common disaster, Taylor v. Diblock, 2 Phill. Eccl. Rep. 261; Mason v. Mason, 1 Meriv. 308; Goods of Murray, 1 Ecc. Rep. 596; Doe dem. Knight v. Nepean, 27 E. C. L. 45; and in cases of intestacy, where a similar rule had been followed as to intestate and heir, Johnson v. Merithew, 80 Maine, 116; Ehle's Estate, 73 Wisconsin, 445; Russell v. Hallett, 23 Kansas, 196-7; Coye v. Leach, 8 Metc. 375; Schaub v. Griffin, 84 Maryland, 562, 566; Satterthwaite v. Powell, 1 Curt. Ecc. Rep. 705; In re Wilbor, 20 R. I. 126.

Also citing on other points, Wollaston v. Berkeley, L. R. 2 Ch. Div. 213; Scrutton v. Patillo, L. R. 19 Eq. 369; 24 Am. & Eng. Ency. 1027-32. As stated in Newell v. Nichols, 12 Hun, 604, affirmed 75 N. Y. 78," when a testator means to dispose of all his property, and uses the words 'if the legatee should not survive,' it is held to mean if the preceding legacy should from any cause fail,'" citing Avelyn v. Ward, 1 Ves. Sr. 419; Rickman v. Morgan, 2 Brown's Chancery Cases, 396; Jones v. Westcombe, 1 Eq. Abbt. 245; Foster v. Cooke, 3 Brown's Ch. 347 ; Doo v. Brabant, 3 Bro. C. C. 397; Taylor v. Taylor, A. & R. 386; Jackson ex dem. Beach v. Durland, 2 Johns. Cas. 314. The intention is to be carried into effect, where apparent, although expressions must be discarded or modified to effectuate that purpose, and the testator must not be presumed to have died intestate if possible. Towns v. Wentworth, 11 M. P. C. 520; Abbott v. Middleton, 7 H. L. Cas. 68; S. C., 21 Beav. 143; Liston v. Jenkins, 2 W. Va. 62, and cases cited; Cox v. Britt, 22 Arkansas, and cases cited; Chapman v. Brown, Burr. 1635, Lord Mansfield; McKeehan v. Wilson, 53 Penn. St. 74; Redfield on Wills, 454, note 1; Jarman on Wills, 456, 414, Cap. 17; Anlick v. Wallace, 12 Bush, 531, citing numerous authorities;

Argument for Appellants, Faul et al.

In re Redfern, 6 Ch. Div. 133; Doe dem. Leach v. Micklem, 6 East, 486; Eatherly v. Eatherly, 1 Cold. 461; Freeman v. Freeman, 8 Vin. Abr. tit. Devise, 51; Sessoms v. Sessoms, 2 Dev. & B. 453 ; Perry on Trusts, sec. 724; Key v. Key, 4 De G. M. & G. 73 ; Pearsoll v. Simpson, 15 Ves. 29; Robison v. Portland Orphan Asylum, 123 U. S. 702; Smith v. Bell, 6 Pet. 68, 80; Patch v. White, 117 U. S. 210; In re Swenson's Est., 55 Minnesota, 300; Yates v. Shern, 84 Minnesota, 165; Metcalf v. Framingham Parish, 128 Massachusetts, 370, 374; Finley v. King's Lessee, 3 Pet. 377; also citing and distinguishing Illinois Land Co. v. Bonner, 75 Illinois, 317; Gibson v. Seymour, 102 Indiana, 485; Rupp v. Eberly, 79 Pa. St. 141.

That under the principles of construction governing wills, and especially the principle which subordinates the letter to the plain intention, to be gathered from the testator's standpoint and from the four corners of the instrument, the Young Women's Christian Home is the party intended by the will of Mrs. Rhodes, under the circumstances which have occurred, to receive her estate; and that the principle deducible from the authorities upon the subject is, that, under the English law, the estate of the person so dying is to be administered as though he, as to that estate, was the survivor, and that the estate of Mrs. Rhodes is accordingly to be so administered.

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Mr. A. A. Hoehling, Jr., on behalf of Barbara Faul et al., next of kin of the mother, appellants, and whose contentions were opposed to those of the Young Women's Christian Home:

I. It is not permissible under the guise of construction to incorporate distinct provisions into a will, nor to insert therein conditions or contingencies not provided for by the testatrix. Redfield on Wills, vol. 1, 4th ed. par. 33–1, pp. 458-472; Roper on Legacies, vol. 1, p. 750; 2 Roper on Legacies, 1464; 2 Redfield on Wills, 283; Wing v. Underwood, 4 De G. M. & G. 633, 654; Wing v. Angrave, 8 H. L. 205; Illinois Land Co. v. Bonner, 75 Illinois, 317; Gibson v. Seymour, 102 Indiana, 485; Rupp v. Eberly, 79 Penn. St. 141.

II. The will of the testatrix does not show an intent that

Argument for Appellee.

the Home should receive her entire estate, save only in the event of the substantial survivorship of the son.

III. The authorities cited by counsel for the Home are not in point. Finley v. King's Lessee, 3 Peters, 346; Clark v. Boorman's Exrs., 18 Wall. 493; Colton v. Colton, 127 U. S. 300; Lee v. Simpson, 134 U. S. 572; Robison v. Orphan Asylum, 123 U. S. 702; Metcalf v. Framingham Parish, 128 Massachusetts, 370, 374, cited and distinguished.

IV. Where two or more persons perish in a common disaster, and the order of their deaths is unascertainable by evidence, there is no legal presumption of survivorship in favor of any such persons, and in such case property rights are disposed of as if death bad occurred to all at the same time. Citing cases on brief of other appellant, and The King v. Hay, 1 Wm. Black. 640; Murray's Case, 1 Curteis, 596; Satterthwaite v. Powel, 1 Curteis, 705. Silleck v. Booth, Younge & Collyer Ch. Rep. 121; In re Selwyn, 3 Hagg. Eccl. Rep. 748, cited and distinguished.

Mr. J. W. Smith and Mr. William Henry Dennis on behalf of the administrator of Eugene Rhodes, the son, appellee:

In whatever way the matter may be reasoned out, whether by choosing among the three contingencies possible—that the mother, the son, or neither, survived the other—or by passing those contingencies by as unascertainable and seeking ground beyond for prima facie right, the result must be the affirmance of the decision appealed from, for, if the former course be followed, the son's survivorship must be found as a fact, and if the latter be followed, every other ground for prima facie right must be deemed secondary and subordinate to that of the unextinguished and unextinguishable preference made by the will and the law in the son's favor.

The evidence was sufficient to show that the son survived his mother: by reason of his better size, stronger sex and the nature of his clothing, he was better able to withstand the death cause ; his knowing how to swim would ward off despair and collapse and give him self-possession to look out for wreckage and keeping afloat; his younger and warmer blood would

Argument for Appellee.


stand him in good stead in the icy waters of the North sea; "when shipwreck occurs men are more apt to be saved than woPersons with apoplectic tendencies (the mother was corpulent and short winded) are more apt to be struck with the disease when precipitated into the water." Wharton and Stillé, Med. Jur. § 726. Of 60 women and 70 children on the Elbe only one woman survived; only one woman out of 176 was saved on the Burgoyne; not a woman or child was saved on the Atlantic.

Where rested the fatal onus at the start? As between the Home as legatee, and testatrix's next of kin-if not her son, then her brother and sister. The next of kin having a prima facie right, the onus probandi is on the other party.

In such cases the common law requires evidence from start to finish, judgment going in the end, if there be not evidence enough to shift the burden of proof, against the party resting under that burden at the start.

Neither a codemise nor a survivorship is presumed by law, nor is the evidence such cases admit of sufficient to shift the burden of proof.

As between a testator's next of kin and his legatee, the burden rests on the legatee of proving the contingency or contingencies that underlie his bequest, the next of kin having prima facie right at the start; or, as applied to the cases at bar, the burden lies on the Home of proving codemise or the mother's survival (i. e. the son's non-survival), the next of kin, whoever they were, having prima facie right.

Citing many of the authorities on appellants' briefs and also Best's Ev. Book III, pt. 1, 369; Balder v. Middeke, 92 Ill. App. 227; Greenleaf on Evidence, 16th ed. note 5, § 30, p. 126; Hil debrant v. Armes, Texas Ct. of Appeals, 1901, 66 S. W. 128; Ommany v. Stillwell, 23 Beav. 330.

In the construction of the will the most natural intention was that the property was not to be willed away from the son at all unless he was no longer in being to take it at his mother's death; and the real question is not whether the son survived any length of time, but where the burden rests of proving the order of deaths. The claim of the Home draws its strength,

Opinion of the Court.

not so much from what is in the will as from what, judging from this post-mortem statement, ought to be there.

As to who are the next of kin, the onus rests on the remoter kin to prove that all the nearer kin once known to exist had ceased to exist before the testator's death. Emerson v. White, 29 N. H. 482; Schaub v. Griffin, 84 Maryland, 557; Posey v. Hanson, 10 D. C. App. 496; Wharton's Ev. sec. 1280; Cowman v. Rogers, 73 Maryland, 403. Other cases cited in opposing briefs distinguished.

Mr. CHIEF JUSTICE Fuller, after making the foregoing statement, delivered the opinion of the court.

The rule is that there is no presumption of survivorship in the case of persons who perish by a common disaster, in the absence of proof tending to show the order of dissolution, and that circumstances surrounding a calamity of the character appearing on this record are insufficient to create any presumption on which the courts can act. The question of actual survivorship is regarded as unascertainable, and descent and distribution take the same course as if the deaths had been simultaneous. Underwood v. Wing, 4 De Gex, M. & G. 633 ; Wing v. Angrave, 8 H. L. Cas. 183; Newell v. Nichols, 12 Hun, 604; S. C., 75 N. Y. 78; Johnson v. Merithew, 80 Maine, 111; Cowman v. Rogers, 73 Maryland, 403; Russell v. Hallett, 23 Kansas, 276 ; In re Willbor, 20 R. I. 126; 1 Greenl. (15th ed.) $$ 29, 30.

Conceding this to be so, the next of kin of Mrs. Rhodes contend that her estate has passed to them as in case of intestacy, because it does not appear that the son survived the mother, or that the mother survived the son, and the estate was given to the son only in the one event, and to the Young Women's Christian Home only in the other. This view was rejected by the District Supreme Court in holding that the intention of the testatrix was plain that the Young Women's Christian Home should take in the event that the husband and son did not survive her, and should be carried out; and the Court of Appeals rejected it in holding that the will by its terms vested the

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