Renard v. Bennett

• Citation: 93 P. 261,76 Kan. 848
• Decision Date: 07 December 1907
• Docket Number: 15,247
• Parties: ARTHUR E. RENARD et al., as Partners etc., v. EDWARD BENNETT et al
• Court: United States State Supreme Court of Kansas

93 P. 261

76 Kan. 848

ARTHUR E. RENARD et al., as Partners etc., v. EDWARD BENNETT et al

No. 15,247

Supreme Court of Kansas

December 7, 1907

Decided July, 1907.

Error from Cloud district court; WILLIAM T. DILLON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEATH--Presumption--Unexplained Absence--Inquiry. Following Modern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100, 2 L. R. A., n. s 809, it is held that the inference of death to be derived from the unexplained absence of a person from his home for a period of seven years is, at best, only a presumption, and it cannot arise unless the absence remains unexplained after diligent inquiry is made of the persons and at the places where tidings of the absentee, if living, would most probably be had.

2. DEATH--Mere Absence Will Not Raise the Presumption. The removal of a person to another part of the country, or his mere absence from a former home, where he has been unheard of for seven years, does not create the presumption of death.

3. DEATH--Diligent Inquiry Indispensable. If the absentee left without intending to return and there is a change of domicil the fact that he has not communicated with, or is unheard of by, those remaining at his former home will not raise the presumption of death. That presumption does not arise until due inquiry has been made at his last known domicil and of the persons likely to know of his whereabouts, if living.

Park B. Pulsifer, and Charles L. Hunt, for plaintiffs in error.

F. W. Sturges, for defendants in error.

OPINION

JOHNSTON, C. J.:

This was an action by Edward Bennett and Nettie Seyster, children of Orrin E. Bennett, to recover an undivided one-half interest in a tract of land lying near the city of Concordia, and they asked for partition as well as rents and profits. The tract was formerly owned by D. W. Williams, who conveyed an undivided one-half interest to Orrin E. Bennett, and together they operated a brewery on the land until 1881, when the prohibitory law went into effect. About that time Williams removed to Missouri, while Bennett remained at Concordia and for a few years gave the property some attention. In a foreclosure proceeding against Williams a sale of the land was decreed, and the sheriff sold the same to the First National Bank of Concordia, conveying the property by a deed dated May 5, 1892. On December 21, 1900, the bank executed a deed purporting to convey the property to Renard Brothers, who are named as defendants in this action.

The theory of the action is that Bennett's interest in the tract had never been sold or transferred by any of the prior instruments or proceedings; that Bennett was dead and that his interest had passed to his children, who were his only heirs. When plaintiffs had introduced their testimony, which was largely devoted to an attempt to show the death of Orrin E. Bennett, its sufficiency was challenged by a demurrer to the evidence, which the court overruled, and at the end of the trial it was adjudged that Edward Bennett and Nettie Seyster each owned an undivided quarter interest in the property in question, the rents and profits were determined, and the partition of the property directed.

The only claim of the Bennett children to a share in the land in controversy is based on heirship, or inheritance from their father, and it therefore devolved upon them to establish his death. There was no direct proof of death as a fact, and to supply this lack they offered testimony which was intended to raise the presumption of death. The controlling question is, Were the circumstances proved sufficient to end the presumption of life and start the presumption of death? If not, then the demurrer to the evidence should have been sustained, as counsel for the Renard Brothers contend. When the action was brought Bennett had been absent from Concordia for more than fifteen years, but his mere absence from that city, although it extended for more than seven years, did not create the presumption of death. That presumption cannot arise from a change of residence or a removal from the place where the family or relatives reside. It is the unexplained absence from the absentee's last known residence or place of resort for the seven-year period that gives rise to the presumption. Nor is it enough that he has been absent and unheard of for this period, but the presumption can only arise after diligent and fruitless inquiry of persons and at places where news of him, if living, might likely be obtained.

The identical question was before the court in Modern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100, 2 L. R. A., n. s., 809. Gerdom, an unmarried man, left his home in Kansas and went to California, where he obtained employment. After several letters to members of his family and some changes of location he ceased to communicate with them, and no tidings of him were received by his father or mother for more than seven years. He carried life-insurance in a fraternal society, which was claimed by beneficiaries, who insisted that he was dead. It appeared that only a limited inquiry as to whether he was living had been made by them, his father being the only witness who testified on the subject, and it was shown that he had not inquired of all the people and at all the places where news of the son, if living, might have been obtained. On this state of the case it was held that it was not a question as to whether there was some testimony to support the finding of death, but it was rather whether facts indispensable to start the presumption of death had been produced. Mr. Justice Burch, in a carefully prepared opinion, in speaking of the missing party and the circumstances which might give color to his absence, said that he "was a young, unmarried man, in good health, with the wander-lure upon him, trying his fortunes in a distant state, able to make his own way in the world, but whose circumstances had become such, or whose disposition toward his relatives had so far changed during his absence from home, that he no longer advised them, as he had been in the habit of doing, of changes in his affairs, of his plans, and of his movements from town to town." (Page 396.) In treating of the inquiry which should be made and the preliminary proof necessary to start the presumption of death it was said:

"In order that the presumption of life may be overcome by the presumption of death there must be evidence, not merely of absence from home or place of residence for the period of seven years, but there must be a lack of information concerning the absentee on the part of those likely to hear from him, after diligent inquiry. [Quoting authorities.] It is conceived, however, that the character of the inquiry, the persons of whom it must be made and the place or places where it must be made are all to be determined by the circumstances of the case, with the obligation always upon the person who is to derive a benefit from the death of the absentee to exclude by the best evidence and with as much certainty as possible reasonable belief that he continues to live." (Pages 396, 397.)

After referring to the fact that inquiry was not made of certain intimate friends with whom the absentee might have communicated the...