Armstrong v. Armstrong
| Decision Date | 18 February 1926 |
| Parties | ARMSTRONG v. ARMSTRONG et al. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Suit by Mary A. Armstrong against Jennie Armstrong and others for partition. Final hearing on bill with prayer for decree establishing death of Joseph Armstrong. Decree establishing death denied.
Herbert S. Killie, of Mb Dolly, for complainant.
Joseph F. Holland, of Newark, for defendant Jennie Armstrong.
Palmer & Powell, of Mt. Holly, for defendants Nolan and others.
The only question necessary for determination herein at this time is whether the evidence which has been adduced is adequate to support a presumption of the death of Joseph Armstrong.
Our statute touching presumptions of death arising from an absence of seven years was originally adopted in 1797 (Pat. p. 241) and has remained unchanged since that time, except as to an amendment in 1895 (P. L. 1895, p. 751). That amendment extended the provisions of the act to nonresidents and added a provision touching concealment, but in no way changed its general nature, purpose or effect. The statute, as it now exists, provides as follows:
"That any person, whether resident of this state or not, who shall remain beyond sea or absent himself or herself from this state, or from the place of his or her last known residence, or conceal himself or herself in this state, or in the place of his or her last-known residence, for seven years successively, shall be presumed to be dead, in any case wherein his or her death shall come in question, unless proof be made that he or she were alive within that time." 2 Comp. St. p. 1904.
It has been determined in this court that this statute is to be understood as simply defining the limits and directing the application of the ancient rule of the common law and rendering the common-law presumptions of death imperative. Osborn v. Allen, 26 N. J. Law, 388; Burkhardt v. Burkhardt, 52 A. 296, 63 N. J. Eq. 479.
Alike by the common-law rule and by our statute it is not the mere absence of a person beyond sea, or elsewhere, for the period of seven years, that raises the presumption of death. Absence is meaningless in any concrete sense unless associated with some place from which the person is absent. Accordingly, it has been repeatedly held that the absence contemplated is absence from a person's home or last known place of abode. Treating the common-law rule as a rule of evidence, Mr. Greenleaf says:
"There must also be evidence of diligent inquiry at the place of the person's last residence in this country, and among his relatives, and any others who probably would have heard of him, if living; and also at the place of his foreign residence, if he was known to have had any." 2 Greenleaf on Ev. (Lewis' Ed.) § 278-f.
"Even where the person, whose existence is in question, has remained beyond sea for seven years, if he had a known and fixed residence in a foreign country when he was last heard from, he ought not, in justice, to be presumed dead, without some evidence of inquiries having been made for him at such known place of residence, without success." MeCartee, Adm'r, v. Camel, 1 Barb. Ch. (N. Y.) 455, 463.
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...place, the statute is designed as a rule of evidence, and may be rebutted. Clarke's Ex'rs v. Canfield, 15 N.J.Eq. 119; Armstrong v. Armstrong, 99 N.J.Eq. 19, 132 A. 237. And further, if it appears that the "decedent" at some time appears, the statute provides that his property must be resto......
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