3 & 4 Will. 4, c. 27, s. 16.

Presumption of death.

actually took place; but this is a matter concerning which the jury must form their own opinion upon the particular facts of the case. And therefore an ejectment brought by a remainderman more than twenty but less than twenty-seven years since the tenant for life was last heard of, cannot be supported without other evidence, from which the jury may infer that the tenant for life was alive within twenty years. (Doe d. Knight v. Nepean, 2 Nev. & M. 219; 5 B. & Ad. 86.) In that case it was necessary to show that the ejectment was brought within twenty years of the death of a party, and for that purpose it was insisted, that although after a lapse of seven years after a party was last heard of the law presumes him to be dead, yet that the presumption is that he lives during the whole of that period; but the Court of Exchequer Chamber, on appeal from the Court of King's Bench, affirmed the doctrine there laid down, "that where a person goes abroad and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or end of any particular period during those seven years; that if it be important to any person to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was heard of. The presumption of law relates only to the fact of death; the time of death, whenever it is material, must be a subject of distinct proof." (Nepean v. Doe d. Knight, 2 Mees. & W. 894. See Doe d. Knight v. Nepean, 5 B. & Ad. 86; 2 Nev. & M. 219; Rex v. Inhabitants of Harbourne, 2 Ad. & Ell. 540; 4 Nev. & M. 341; Rex v. Twyning, 2 B. & Ald. 386.) A person ought not to be presumed to be dead from the fact of his not having been heard of for seven years, if the other circumstances of the case render it probable that he would not be heard of though alive. The old law relating to presumption of death is daily becoming more untenable, in consequence of the increased facility of travelling. (Watson v. England, 14 Sim. 28.)

A reference was made to the master, to inquire whether A. B. was living or dead. He reported certain facts and findings on stated evidence, showing that, after diligent inquiry, nothing had been heard of A. B. for more than seven years; and he found that he was not able to state to the court whether A. B. was living or dead. On a petition to confirm the report, the court read and considered the evidence, and came to a conclusion presuming the death. (Grissall v. Stelfar, 9 Jur. 890. See Wilcox v. Purchase, Ib.)

The presumption of death, after seven years' absence, does not arise where the probability of intelligence is rebutted by circumstances. (Bowden v. Henderson, 2 Sm. & Giff. 360.)

Where it is necessary to a plea of justification, under a lease from tenant for life, that he should be still living, the defendant must aver the continuance of the life, otherwise the plea is bad on general demurrer. (Dayrell v. Hoare, 4 Per. & Dav. 114.) A declaration for rent by assignee of a reversion for the life of a third person against assignee of the term, omitted to aver that cestui que vie was living when the rent accrued: it was held, that the continuance of the life was not to be implied from the mere deduction of title, and an acknowledgment in the breach that "after the plaintiff became so seised the rent became due and still is in arrear to the plaintiff," and that the declaration was bad on general demurrer. (Fryer v. Coombs, 4 Per. & Dav. 120; 11 Ad. & Ell. 403.) In Webster v. Birchmore, (13 Ves. 362,) the presumption of death from length of time was held to have relation to the commencement of the period of uncertainty as to the existence of the party when he was proved to have been in a desperate state of health, and was to have returned to his relation in six months. In Sillick v. Booth, (1 Y. & Coll. N. C. 117,) a party was presumed to have died at a particular time within the seven years after he had been last heard of, the particular time being the hurricane months, and the party having sailed from Demerara before the expiration of such hurricane months. Where a testator died in 1829, leaving a will in favour of his children, one of whom went abroad in 1809, and had not been heard of since 1815; both before and after the testator's death endeavours were made, by inquiries and advertisements, to ascertain whether such child

3 & 4 Will. 4, c. 27, s. 16.

death.

were living or dead, but without success: it was held, that he must be presumed to have died before the date of the will. (Rust v. Baker, 8 Sim. 443.) In establishing a title upon a pedigree, where it may be necessary to throw a branch of the family out of the case, it is sufficient to show that the Presumption of person has not been heard of for many years, to put the opposite party upon proof that he still exists. What is done on such a trial is no injury to the man or his issue, if he should afterwards appear and claim the estate. (Rowe v. Hasland, 1 W. Bl. 404. See Fitz. N. B. 196, A. L.) Proof by one of a family, that many years before a younger brother of the person last seised had gone abroad, and that the repute 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 primâ facie evidence of his death without issue to entitle the next claimant by descent to recover in ejectment. (Doe d. Banning v. Griffin, 15 East, 293.) The death of a legatee has been presumed from twenty-five years' absence abroad without being heard of. (Dixon v. Dixon, 3 Br. C. C. 510.) On a reference to the master to inquire whether a legatee was living or dead, the certificate of the master, stating that the legatee had been abroad twenty-eight years, and not been heard of for twenty-seven years, and his opinion that he died in the lifetime of the testator, was the foundation of a decree. (Lee v. Willock, 6 Ves. 606; Reg. lib. 1791, fol. 315. See also 13 Ves. 362.)

A. went abroad in September, 1830. His father died in September, 1833. About twenty months previous to that time A. was heard of for the last time. The court ordered the share of the father's residue bequeathed to A. to be transferred to his brother, as the sole next of kin of the father living at the father's death, on the brother giving security to refund it, in case A. should be living, or should have died after his father. (Dowling v. Winfield, 14 Sim. 277.)

A sum of money was set apart, in 1815, to answer an annuity to a woman then supposed to be resident in India, but who was never afterwards heard of. In 1837, the master having certified, upon presumption that she was dead, but without finding when she died, the court ordered payment of the principal money to the party entitled to it, subject to the annuity. In 1842, the master having certified, upon presumption that she had died in 1822, and that no personal representative had been heard of, the court ordered immediate payment to the same party of the accumulation since that time. And, in 1847, it ordered payment of the rest of the fund to the same party, though resident abroad, upon his giving his personal security to refund, in case the annuitant, or her personal representative, should ever establish a claim. (Cuthbert v. Purrier, 2 Ph. C. C. 199.) Where the husband of a party had, seven years before her death, left this country for America, and had not been heard of since three days after his arrival there, although he had been advertised for in that country, the husband's death was presumed, and probate was granted of his wife's will as if she had died a widow. (Re bonis How, 1 Sw. & T. 53; 4 Jur., N. S. 366.) As to presuming the death of parties who embarked in vessels lost at sea or not afterwards heard of, see In bonis Norris, 1 Sw. & T. 6; 27 L. J., Prob. 4; In bonis Main, 1 Sw. & T. 11; 27 L. J., Prob. 5; In bonis Smyth, 28 L. J., Prob. 1.

Where husband and wife are drowned by the same accident, the pre- Presumption of sumption is that they died at the same time, and in order to entitle the next survivorship. of kin of the husband to the wife's property, it must be shown that he sur

vived his wife. (Satterthwaite v. Powell, 1 Curt. 705.)

The testator and his wife were shipwrecked and drowned at sea, one wave sweeping both of them together into the water, after which they were never seen again; a question was raised between the next of kin of the testator and a legatee under the will, which was dependent on the event of the testator's surviving his wife: it was held, first, that the onus of proof, that the husband was the survivor, was upon the legatee; secondly, that it was requisite to produce positive evidence in order to enable the court to pronounce in favour of the survivorship; and thirdly, that no such evidence having been produced, the next of kin was entitled. (Underwood v. Wing, 4 De G., M. & G. 631; 1 Jur., N. S. 169; 24 Law J., Ch. 293.)

By the law of England the question of survivorship, in cases of the above

3 & 4 Will. 4, c. 27, s. 16.

description, is matter of evidence, and not of positive regulation and enactment, varying according to the ages and sex of the persons dying in the same shipwreck, as it is in the French Code, and in the absence of evidence there is no conclusion of law on the subject. (lb.)

Where a party who took under a will had not been heard of for seven years, the testator having died after three years had elapsed, and the advertisements which were issued on the death of the testator had failed to produce any information, it was decided that such legatee must be assumed to have survived the testator, and could not be presumed to have died at any particular period during the seven years. (Dunn v. Snowdon, 11 W. R. 160)

A young sailor, who was last seen in the summer of 1840 going to Portsmouth to embark, was presumed to have survived his grandmother, who died in March, 1841. (Re Tindall, 30 Beav. 151.)

There is no presumption of law arising from age and sex as to survivorship among persons whose death is occasioned by one and the same cause. Nor is there any presumption of law that all died at the same time. The question is one of fact, depending wholly upon evidence; and if the evidence does not establish the survivorship of any one, the law will treat it as a matter incapable of being determined. (Wing v. Angrave, 8 H. L. C. 183.)

In Sillick v. Booth, (1 Y. & Coll. C. C. 117,) it was held that evidence of health, strength, age or other circumstances may be given in cases of the above nature tending to the judicial presumption that one of two brothers who perished by shipwreck survived the other. (See Gen. Stanwix's case, Fearne's Post. Works, 38; Rex v. Dr. Hay, 1 Wm. Bl. 640; Swinburn, part 7, s. 33; Wright v. Netherwood, 2 Salk. 593, n.; Hitchcock v. Beardsley, West's Rep. t. Hardwicke, 445; Bradshaw v. Toulmin, 2 Dick. 633; Mason v. Mason, 1 Mer. 308; Taylor v. Diplock, 2 Phill. Ecc. C. 261; In bonis Selwyn, 3 Hagg. Ecc. R. 741; Colvin v. The King's Proctor, 1 Hagg. Ecc. 92.)

It will be observed, that this act provides that no action shall be brought but within forty years after the right first accrued, and that no further time, beyond the twenty or ten years, is allowed for a succession of disabilities.

But no action, &c. shall be brought beyond forty years after the right of action accrued.

A purchaser entitled to evidence of sixty years' title.

EXTREME PERIOD OF LIMITATION FIXED.
Forty Years.

17. Provided nevertheless, and be it further enacted, that no entry, distress or action shall be made or brought by any person who, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such forty years, or although the term of ten years, from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired (i).

(i) The period for which a good title is required to be shown is still sixty years, notwithstanding the stat. 3 & 4 Will. 4, c. 27. Lord Lyndhurst, C., said, "It was supposed that, by the operation of that act, it was not necessary that the title should be carried back, as formerly, to a period of sixty years, but that some shorter period would be proper. It appears that con

veyancers have entertained different opinions on the subject; but, after considering it, I am of opinion, that the statute does not introduce any new rule in this respect; and that to introduce any new rule shortening the period would affect the security of titles. One ground of the rule was the duration of human life, and that is not affected by the statute. It was true that, in other respects, the security of a sixty years' title is better now than it was before; but I think that it is not a sufficient reason for shortening the period for adopting forty years, or, as it has been suggested by a high authority, fifty years, instead of the sixty. I think the rule ought to remain as it is, and that it would be dangerous to make any alteration." (Cooper v. Emery, 1 Phill. C. C. 388.)

3 & 4 Will. 4,

c. 27, s. 17.

section.

A feme sole seised in fee married, and she and her husband ceased to be Cases on conin the possession or enjoyment of the land, and went to reside at a distance struction of this from it. They both died at times which were not shown to be within forty years from their ceasing to occupy. The wife's heir-at-law brought ejectment against the person in possession within twenty years of the husband's death, and within five years of the passing of this statute, but more than forty years after the husband and wife ceased to occupy: it was held, that the heir-at-law was barred by the 17th section of the statute, though it did not appear when or how the defendant came into possession, and though proof was offered that the wife had levied no fine. Denman, C. J., said, "The fact being clear that within the terms of 3 & 4 Will. 4, c. 27, s. 3, the plaintiff's mother was dispossessed or discontinued the possession or receipt of the rents above forty years before the action brought, the action was clearly barred by the 17th section of the same statute. Some argument was raised on the question whether the possession was adverse or not, but the terms of that clause are unequivocal, and one of its objects was to avoid the necessity of inquiring into facts of so ancient a date. If the persons actually in possession could be shown to have held under him through whom the plaintiff claims, the possession of the former might be regarded as the possession of the latter, but in this case there was not a single fact from which such an inference could be drawn. On the contrary, the departure of the former possessors to a distance without appearing to have received any rent or made any demand, is the strongest evidence of their intending to abandon at once all occupation and all claim of ownership. And as the title of the plaintiff's ancestor rested on no documents, but was merely evidenced by possession at an early period, that ancestor's entire desertion of the premises for so long a time goes far to show a consciousness that the anterior occupation was without title. It is true that if Mrs. C. was the owner, her husband was tenant by the curtesy, and that their son's right of possession did not accrue till after his father's death; but this furnishes no answer to the positive enactment of limitation in the 17th clause." (Doe d. Corbyn v. Bramston, 3 Ad. & Ell. 63; S. C. nom. Doe d. Corbyn v. Branson, 4 Nev. & M. 664.) There is a material distinction between the case of a husband and wife making the possession derelict as was the case in Doe v. Bramston, and the case where the husband and wife are seised in fee in right of the wife, and the husband, by a conveyance which does not bind the wife, purports to convey the fee. Because the effect at law is, that such conveyance merely passes to the grantee of the husband that estate which he had and might have held during the continuance of the coverture. In such case the right of the wife comes within the fourth description of interest in the 3rd section of the statute 3 & 4 Will. 4, c. 27. If husband and wife, being seised in fee in right of the wife, convey to a purchaser by deed without fine, the wife, if she survives, and if not her heir, may, on the husband's death, recover the land, notwithstanding the purchaser may have been in possession for more than forty years. (Jumpsen v. Pitchers, 13 Sim. 327.) The purchaser held under the husband by means of the lawful estate which the husband could create, and the creation of which had the effect of making that which was the wife's present estate, a future estate, within the meaning of the fourth description in the 3rd section of the statute. (Ante, p. 165.) In 1787, a lease was made by a lunatic to his brother for lives renewable for ever. The lessee, who was the last life in that lease, died in 1836. Various proceedings were had in the lunacy matter respecting the lease and

3 & 4 Will. 4, c. 27, s. 17.

the rent reserved thereby, the result of which was that, without recognizing the lease as a valid demise, the lessee was permitted to hold part of the lands demised, paying the entire reserved rent. From 1836 to 1842 the profits were received by the heir of the lessee. In 1842 the lessor died, and the fee descended upon the heir of the lessee, who was also heir of the lessor. It was held, on a bill filed by a judgment creditor of the lessee, that the latter had not acquired either the fee-simple, subject to a perpetual rent equal to the rent reserved, or a right to a renewal, by reason of the Statute of Limitations (3 & 4 Will. 4, c. 27), length of time, or the proceedings in the lunacy matter; and that the profits received by the heir of the lessee, from 1836 to 1842, were not assets of the lessee. For although the lessee had enjoyed the property demised for three lives, and no one attempted to impeach the lease, yet the court had no power to give validity to the covenant for renewal contained in it. The covenant was in itself simply void, and in itself created no obligation on the part of the lunatic, who was incapable of contracting, and the lapse of time did not enable the court to give validity to the covenant, which was void at law. (Fulton v. Creagh, 3 Jones & L. 329.)

No further time

to be allowed for a succession of disabilities.

Successive Disabilities.

18. Provided always, and be it further enacted, that when any person shall be under any of the disabilities hereinbefore mentioned at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person (k).

(k) This section is so far retrospective as to extend to a case where the first person under disability died before the passing of the act. A claimant to land in the colony of New South Wales, whose ancestor died under disability in 1835, and who himself continued under disability till he brought an action of ejectment in 1856, was barred by a colonial ordinance of 1837, which applied the 3 & 4 Will. 4, c. 27 to the colony of New South Wales. (Devine v. Holloway, 9 W. R. 642; 14 Moore, P. C. C. 290.) It is easy to imagine infancy, coverture, lunacy and absence beyond the seas, so to follow one another with respect to a particular line of heirs, that by successive disabilities the period of limitation might be indefinitely protracted; the object of this section of the act is, where ten years or more have expired from the time when the right accrued to a party dying under disability, to allow his heir only ten years whether under disability or not. Successive disabilities in the same person had been held to prevent the operation of the Statute of Limitations, and to give to the heir ten years after the death of his ancestor to enforce his claim by ejectment. Therefore, when A., a minor, having herself been dispossessed of certain lands in 1787, married in 1794, and being a feme covert, attained her full age in 1796, and died in 1827, it was held that an ejectment was well brought by her heir. (Lessee of Supple v. Raymond, 1 Hayes, Ir. Rep. 6. See 2 Prest. Abstr. 340; Blansh. Lim. 21, 22.)