Duff v. Duff

• Decision Date: 15 May 1911
• Citation: 137 S.W. 909,156 Mo. App. 247
• Parties: DUFF v. DUFF.
• Court: Missouri Court of Appeals

137 S.W. 909

156 Mo. App. 247

DUFF v. DUFF.

Kansas City Court of Appeals. Missouri.

May 15, 1911.

1. DEATH (§ 2) — EVIDENCE — PRESUMPTION FROM ABSENCE.

The presumption, under Rev. St. 1909, § 6340, providing that if a person residing in the state go from it, and do not return to it for seven years, he shall be presumed to be dead, unless proof be made that he was alive in that time, as well as the common-law presumption of death after an unexplained absence abroad of seven years, which is not abrogated by the statute, is not absolute, but may be overturned by proof or even counter presumptions.

2. DEATH (§ 2) — PRESUMPTION—DEPARTURE FROM STATE—PROOF.

While, in order that the presumption of death, under Rev. St. 1909, § 6340, may be availed of, proof that the person left the state must be clear and convincing, it may consist entirely of circumstantial evidence.

3. DEATH (§ 2)—PRESUMPTION—DEPARTURE FROM STATE—EVIDENCE.

Evidence that one left the state, so as to make available the presumption, under Rev. St. 1909, § 6340, of his death from seven years absence, held sufficient.

4. DEATH (§ 2) — PRESUMPTION — TIME OF DEATH.

Under Rev. St. 1909, § 6340, as to presumption of death of one from his leaving the state and not returning to it for seven years, there is no presumption that he did not die till lapse of the seven years.

5. MARRIAGE (§ 40) — BURDEN OF PROOF — CHANGE OF STATUS.

The burden of showing that one who, when he left was unmarried, and is presumed from his absence for seven years to be dead, changed his status by marrying, is on the party relying on such change.

6. PLEADING (§ 212)—DEMURRER—ANSWERING OVER—EFFECT.

The question of the legal capacity of plaintiff to sue was waived by defendant not standing on her demurrer, presenting the objection, and pleading to the merits.

Appeal from Circuit Court, Harrison County; Geo. W. Wanamaker, Judge.

Action by Talbot S. Duff against Ophie Duff. Judgment for plaintiff. Defendant appeals. Affirmed.

A. S. Cumming, for appellant. J. C. Wilson, Garland Wilson, and J. W. Peery, for respondent.

JOHNSON, J.

Plaintiff commenced this suit in the circuit court of Harrison county in January, 1909, to recover as the heir of his brother, Leander F. Duff, the share of their father's estate that would be due his said brother if he were alive. The petition alleges that Leander died in May, 1906, leaving plaintiff and their mother as his sole heirs, and that the mother assigned her interest in his estate to plaintiff before this suit was brought. Defendant, who is the widow of the father of plaintiff and the administratrix of his estate, denies that plaintiff's brother, Leander, is dead, and the principal issue in the case is whether or not Leander before the institution of this action had died without issue and without creditors.

Defendant demurred to the petition on three grounds, viz.:

"(1) The petition shows on its face that this court has no jurisdiction of the subject-matter of the suit.

"(2) The petition shows on its face that plaintiff has no legal capacity to maintain the suit.

"(3) The petition fails to state facts sufficient to constitute a cause of action."

The demurrer was overruled, and defendant answered, admitting that she is the administratrix of the estate of plaintiff's father, appointed by the probate court of Wright county, and that the estate in her hands is now ready for distribution, and alleging "that, at the time of the final settlement of said estate, it was ordered and adjudged by the probate court of Wright county, Mo., that the personal property should be distributed among the plaintiff, this defendant, and said Leander F. Duff; that it was found and adjudged by the said probate court that the said Leander F. Duff was entitled to $2,895, and that the probate court of Wright county, Mo., adjudged and ordered this defendant as administratrix to pay said sum to the said Leander F. Duff. Defendant, further answering, denies each and every other allegation in plaintiff's first amended petition contained. Defendant, further answering, states that at all times since making final settlement as administratrix as aforesaid she has been ready, willing and anxious to pay to said Leander F. Duff his said distributive share in the estate of the said James F. Duff, and that she now holds said fund subject to the orders of the probate court of Wright county, Mo., in accordance with the law in such cases made and provided."

There is no controversy over the facts of the case. Plaintiff and his brother Leander were the only children of James F. Duff and his wife, Mary, who lived at Princeton, Mo., a city close to the Iowa line. Husband and wife separated, were divorced, and in 1895 James F. Duff married his second wife. They lived together in Princeton until 1902, and Leander lived with them. They were divorced, and in 1902 Mr. Duff married the defendant and removed to Wright county, where he lived until his death in April, 1906. After being divorced, the mother of plaintiff and Leander married a Mr. Wasson, and lived at Lineville, Iowa, a city 16 miles north of Princeton. In September, 1899, Leander, then 16 years old, disappeared from his home in Princeton, and has not been heard from since. Sometimes he and his father quarreled, and on such occasions he would talk to his stepmother about leaving home and enlisting in the army for service in the Philippine Islands. One night after he and his father had quarreled and parted in anger, he retired to his room, and during the night secretly left home, never to return. He did not enlist in the army, and there is no evidence that he went to his mother. Mr. Duff immediately began a most thorough and persistent search for his son, which took him to many cities. He advertised his loss in a great many newspapers, in some of which he caused the boy's picture to be published, and offered a reward for information of his whereabouts. After the death of Mr. Duff, his widow continued the search. She caused advertisements containing a description of the young man and the information that a valuable estate awaited him to be inserted in newspapers all over the country from New York to San Francisco. She invoked the aid of the police departments of many cities, of detective agencies, and of the War Department at Washington. None of these persistent efforts, which covered a period of eight years or more, produced the slightest result. The obliteration of all trace of the boy after he left home was as complete as though the earth had swallowed him.

The court overruled the demurrer to the evidence offered by defendant, and at the request of plaintiff instructed the jury:

"(1) If the jury believe from the evidence that Leander F. Duff while residing in this state went therefrom and has not returned to this state for seven successive years, and that during all that time and up to the time of this trial he has not been heard from by any member of his family, or any other person, then he is presumed at and after the expiration of said seven years absence to be dead, and the jury are at liberty to infer the fact of his death from such absence for seven successive years, and from the fact that he has not been heard from during that time.

"(2) If the jury find from the evidence as defined in the preceding instruction that Leander F. Duff is dead, and that he left surviving him no wife, issue, or their descendants and no other heirs except the plaintiff, Talbot S. Duff, his brother, and Mary A. Wasson, his mother, and that said Mary A. Wasson has assigned to the plaintiff all of her interest in the estate of James F. Duff, deceased, then the jury will find for the plaintiff in the sum of $2,895."

The court refused to give the following instruction offered by defendant: "The court...