Stewart v. Rogers, 244

• Decision Date: 20 November 1963
• Docket Number: No. 244,244
• Citation: 133 S.E.2d 155,260 N.C. 475
• Court: North Carolina Supreme Court
• Parties: Robert D. STEWART, Administrator c.t.a. of the Estate of Worth Stewart, deceased, v. Harriet S. ROGERS.

Page 155

133 S.E.2d 155

260 N.C. 475

Robert D. STEWART, Administrator c.t.a. of the Estate of Worth Stewart, deceased, v. Harriet S. ROGERS.

No. 244

Supreme Court of North Carolina.

Nov. 20, 1963

Richard A. Cohan, Charlotte, for plaintiff appellant.

Blakeney, Alexander & Machen, Charlotte, for defendant appellee.

DENNY, Chief Justice.

The determinative question on this appeal is whether or not the marriage of the defendant to Thomas S. Rogers on 30 May 1956, is a valid marriage.

In the case of Spencer v. Moore, 33 N.C. 160, Ruffin, C. J., speaking for the Court, said: 'The rule as to the presumption of death is that it arises from the absence of the person from his domicil without being heard of for seven years. But it seems rather to be the current of the authorities that the presumption is only that the person is then dead, namely, at the end of seven years; but that the presumption does not extend to the death having occurred at the end or any other particular time within that period, and leaves it to be judged of as a question of fact, according to the circumstances, which may tend to satisfy the mind that it was at an earlier or later day.'

In Spencer v. Roper, 35 N.C. 333, the same Court adopted and quoted the identical language set out above, and added: 'So much of the opinion in the above case is transferred to this, because what was then but intimated we now express as our confirmed opinion. The cases governing this were then examined and referred to. We have again examined them, and after full deliberation see no cause to alter our opinion.' Bragaw v. Supreme Lodge, 124 N.C. 154, 32 S.E. 544; Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661. The cases of Spencer v. Moore, supra, and Spencer v. Roper, supra, have been cited with approval in the following jurisdictions. Davie v. Briggs, 97 U.S. 628, 24 L.Ed. 1086; Whiteley v. Equitable Life Assur. Soc., 72 Wis. 170, 39 N.W. 369; Lukens v. Camden Trust Co., 2 N.J.Super. 214, 62 A.2d 886; Solomon v. Redona, 52 Cal.App. 300, 198 P. 643; Glassock v. Weare, 192 Ky. 654, 234 S.W. 216; Tobin v. United States Railroad Retirement Board (USCA 6th), 286 F.2d 480.

In Wachovia Bank & Trust Co. v. Deal, 227 N.C. 691, 44 S.E.2d 73, this Court said: 'When in a judicial proceeding it is necessary to ascertain as a material fact whether a person is living or dead, the fact of death may be established by circumstantial evidence.

''The absence of a person from his domicile, without being heard from by those who would be expected to hear from him, if living, raises a presumption of his death-- i. e., that he is dead at the end of seven years.' Carter v. Lilley [ante], 227 N.C. 435, 42 S.E.2d 610, 612, and cited cases.

'The mere absence of a person from a place where his relatives reside but which is not his own place of residence, without being heard from by them for a period of seven years, is not sufficient to create a presumption. 25 C.J.S., Death, § 6, pages 1058, 1059. It is the proof of the continued and unexplained absence of a person from his home or place of residence without any intelligence from or concerning him for the required period which gives rise to the application of the rule. 16 A.J. 19; 25 C.J. S., Death, § 6, page 1057.

'This rule of evidence is a procedural expedient sired by necessity and is based on the generally accepted fact that a normal person will not, if alive, remain from his home for seven years without communicating with family or friends. 16 A.J. 19.

'The strength of this presumption varies with the circumstances; its force depends on the character of the person, his attachment to his home, and the circumstances under which he left. 25 C.J.S., Death, § 6, pages 1056, 1061; 16 A.J. 21.'

Likewise, in Fidelity Mutual Life Association v. Mettler, 185 U.S. 308, 22 S.Ct. 662, 46 L.Ed. 922, the Supreme Court of the United States approved the following instruction to the jury: 'While death may be presumed from the absence, for seven years, of one not heard from, where news from him, if living, would probably have been had, yet this period of seven years during which the presumption of continued life runs, and at the end of which it is presumed that life ceases, may be shortened by proof of such facts and circumstances connected with the disappearance of the person whose life is the subject of inquiry, and circumstances connected with his habits and customs of life, as, submitted to the test of reason and experience, would show to your satisfaction by a preponderance of the evidence that the person was dead.' (Emphasis added.)

The evidence adduced in the trial below shows a complete lack of motive on the part of Worth Stewart to disappear and abandon his business and family.

We hold that the evidence was sufficient to have supported a finding that Worth Stewart died soon after he left Jacksonville, Florida, on 26 February 1953, at approximately 11:40 a. m. He flew a small plane into weather conditions constituting a hazard to a pilot of his experience flying a plane equipped as his...