Donovan v. Major

• Decision Date: 08 February 1912
• Citation: 253 Ill. 179,97 N.E. 231
• Parties: DONOVAN v. MAJOR et al.
• Court: Illinois Supreme Court

253 Ill. 179

97 N.E. 231

DONOVAN

v.MAJOR et al.

Supreme Court of Illinois.

Dec. 21, 1911.

Rehearing Denied Feb. 8, 1912.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Woodford County; George W. Patton, Judge.

Bill by Guy Wright against Jo Major and others, as trustees under the will of Mary E. Major, deceased, in which Ross R. Donovan, as administrator of the estate of Will C. Wright, deceased, intervened and filed cross-bill. From a judgment against Ross R. Donovan, he appealed to the Appellate Court, where the judgment was affirmed, and he brings error. Reversed and remanded.

Joseph D. Irose, Ed E. Robeson, and Julius C. Greenbaum, for plaintiff in error.

Thomas C. Kennedy, for defendants in error Jo Major and others.

Orman Ridgely, for defendants in error Howard M. Leonard and Eugene B. Dickinson.

DUNN, J.

By the will of Mary E. Major, who died in 1890, a share of her estate was directed to be held in trust for the descendants of her deceased daughter, Katherine Wright, the income to be applied to their support and education until they should, respectively, reach the age of 21 years, and the principal then to be paid to them. In case any such descendant should die before reaching the age of 21 years, it was directed that the share to which such descendant would have been entitled, had he or she lived, should be given to his or her brothers and sisters. Mrs. Wright's descendants were two sons, Will C. and Guy. She had died some years before her mother, and her husband had married again. Four children were born of this second marriage. Will C. Wright lived with his father and stepmother in Chicago, and, being then a few months past 15 years old, disappeared from his home on April 15, 1893, and has never since been heard from. The question involved in this controversy is the disposition of his share in his grandmother's estate under her will. The will has been entirely executed, except as to this trust, and one-half of the fund was paid to Guy Wright upon his becomingof age; but the trustees still retain the remainder of the fund, because they do not know to whom it should be paid. On July 28, 1908, Guy Wright filed a bill in the circuit court of Woodford county, for the purpose of having the trustees directed to pay to him the share of his brother, Will C. Wright, on the ground that the latter had died before reaching the age of 21 years, and his share should therefore, under the will, be paid to the complainant. On August 11, 1908, the plaintiff in error was appointed administrator of the estate of Will C. Wright by the probate court of Cook county, and later, by leave of the court, became a party defendant, answered the bill, and filed a cross-bill. His claim was that Will C. Wright became of age in 1898, and was then entitled to his share of the funds in the hands of the trustees, and that his administrator is now entitled to such funds. After the commencement of the suit, a conservator was appointed for Guy Wright, and the suit thereafter proceeded in the name of the conservator. On a hearing upon the evidence, the court found that Will C. Wright died before reaching the age of 21 years, dismissed the cross-bill, and decreed that the executors should file an account and pay the amount in their hands to the complainant in the original bill, on his giving a bond to indemnify them in case Will C. Wright should return. The administrator appealed to the Appellate Court for the Second District, which affirmed the judgment, and the record has been brought here by certiorari for review.

[1][2][3] The rights of the parties depend upon the death of Will C. Wright and the date of its occurrence. There is no direct evidence of his death, but proof of that fact rests only upon the presumption which the law raises from his unexplained absence from his home, without having been heard from for seven years by those who would naturally have heard from him if he had been alive, though diligent efforts have been made to find him. Under these circumstances, a presumption of death arises, subject, however, to be rebutted by facts or circumstances sufficient to overcome it, or by a conflicting presumption. Whiting v. Nicoll, 46 Ill. 230, 92 Am. Dec. 248;Johnson v. Johnson, 114 Ill. 611, 3 N. E. 232,55 Am. Rep. 883;Reedy v. Millizen, 155 Ill. 636, 40 N. E. 1028;Hitz v. Ahlgren, 170 Ill. 60, 48 N. E. 1068;Policemen's Benevolent Ass'n v. Ryce, 213 Ill. 9, 72 N. E. 764,104 Am. St. Rep. 190;Kennedy v. Modern Woodmen of America, 243 Ill. 560, 90 N. E. 1084,28 L. R. A. (N. S.) 181. ‘As held by the courts of this country, the doctrine is that a person once found to be alive is presumed to continue to live until there be proof of the contrary. At the end of seven years from the time he was last heard of, the presumption of life ceases, and the opposite presumption, of death, takes its place. The legal presumption, as we understand from the decisions quoted by appellee, establishes, not only the fact of death, but also the time at which the person shall first be accounted dead. This is an arbitrary presumption, but rendered necessary on grounds of public policy, in order that rights depending upon the life or death of persons long absent and unheard of may be settled by some certain rule.’ Whiting v. Nicoll, supra. The conclusion to be drawn from the record, in accordance with this presumption, is that Will C. Wright is to be regarded as dead on the 15th day of April, 1900, and not before, unless evidence of facts and circumstances appear sufficient to...