Whiting v. Nicholl

• Decision Date: 30 September 1867
• Citation: 1867 WL 5360,46 Ill. 230,92 Am.Dec. 248
• Parties: MARY E. WHITINGv.FRANCES B. NICHOLL.
• Court: Illinois Supreme Court

46 Ill. 230

1867 WL 5360 (Ill.)

92 Am.Dec. 248

MARY E. WHITING

v.FRANCES B. NICHOLL.

Supreme Court of Illinois.

September Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

This was a proceeding instituted by Frances B. Nicholl, the appellee, in the Circuit Court of Cook county, against Mary E. Whiting, the appellant, to recover dower in land owned by her, situated in that county, and a decree having been entered in favor of the appellee's right of dower, an appeal was taken by the defendant to this court.

The record presents two questions: First--whether there was sufficient legal evidence of the death of Edward A. Nicholl, the husband of the appellee; and secondly--whether, if the fact of his death was proved, it did or not occur more than seven years before the commencement of this suit.

There was no direct positive evidence of the fact of the husband's death.

He had become involved in serious pecuniary difficulties in the city of New York, the place of his residence from the time of his marriage to the appellee, in the year 1818, and left there in December, 1842, and never returned, except once, when he stayed with his wife about one week, in the adjoining city of Brooklyn, New York.

He was frequently heard from, by letters written by him to his family and friends. The last time they heard of him, was by a letter dated March 21, 1852, addressed by him to his wife, from Pittstown, Penn.

The appellee's case was based upon the theory that the presumption of his being alive, lasted for seven years from that date, or until March 21st, 1859, when it ceased; and was followed by the presumption of his death from and after the last named date, and as this suit was commenced March 14th, 1866, that her claim for dower was not barred by the limitation of seven years from the death of her husband. The seizin of the husband, as well as the marriage, was not contested in this court.

The defendant below set up the defence of the statute of limitations, under claim and color of title, dated March 31st, 1856, and payment of all taxes assessed upon the premises since that date, accompanied by possession, and also proved that she paid the full consideration named in the deed to her.

The defendant below also claimed that, as the suit was not brought until more than thirteen years from the time Nicholl was last heard from, the appellee was bound to prove that her husband was alive within seven years prior to the date of bringing the suit, and that the mere presumption of his being alive, drawn from the fact that he was last heard from March 21st, 1852, would not suffice to show that he was alive within seven years next before March 14th, 1866, when the suit was commenced.

The appellee insisted that her husband was to be presumed alive until March 21st, 1859, and that after that date he was presumed to be dead; while the appellant claimed there was no presumption that he lived until the last day of the seven years, and that the appellee must show at what time he died, in order to overcome the presumption of law in favor of a party in possession of land, resisting a hostile claim.

Messrs. SCAMMON, MCCAGG & FULLER, for the appellant.

Mr. J. M. CRAM and Mr. A. W. ARRINGTON, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court: This was a petition filed by Frances B. Nicholl in the Circuit Court of Cook county, claiming dower in an undivided one-third of certain property, known as lot two, and the east ten feet of lot three, in block thirty, in Kinzie's addition to Chicago. The demand for dower was made on Mary E. Whiting, the appellant, on the second of May, 1863. The demandant claimed dower as the widow of Edward A. Nicholl, and his title was not brought in question. The defendant set up possession of the premises under claim and color of title, derived from a deed of the same from William B. Ogden, made in good faith, from the 31st of March, 1856, and payment of all taxes thereon, and claimed the benefit of the statute, and insisted, if Edward A. Nicholl was dead, he died more than seven years prior to the commencement of the suit. The defendant also set up a defence under the act of 1835, by showing possession of the premises by actual residence thereon under a connected title deducible of record, from the United States, for more then seven years prior to the commencement of the suit.

The cause was regularly at issue by answer and replication, and on the proofs, a decree passed in favor of Mrs. Nicholl, that she have dower in the premises, and her damages to be assessed, and costs.

To reverse this decision the defendant has appealed to this court.

The only questions of importance, are, first, was Edward A. Nicholl, the husband, dead? And second, if dead, at what time did he die?

There was no positive proof of the death of the husband.

The proof was, that he left the city of New York, where he then lived from the time of his marriage in 1818, in December, 1842, under unfavorable circumstances, and never returned, except once, when he stayed with his wife about one week in the adjacent city of Brooklyn. He was last heard from by his family and friends through a letter from him dated Pittston, Pa., March 21, 1852; although search was made for him at that place, and at all places where it was supposed he might have gone, it was fruitless. Under these circumstances, that the law raises the presumption that he was dead at the end of seven years from that date, is well settled. The general rule on this subject may be thus stated: When a person goes abroad, and has not been heard of for a long time, the presumption of the continuation of life ceases at the expiration of seven years from the period when he was last heard of. And the same rule holds, generally, with respect to persons away from their usual places of resort, and of whom no account can be given. Best on Presumptions, 190.

The appellee's counsel insist that the husband was to be presumed to be alive until March 21, 1859, and only after that date should he be presumed to be dead; while the appellant's counsel insists there was no presumption that he lived until the last day of the seven years, and appellee must show at what time he died, in order to overcome the presumption of law in favor of a party in possession of land resisting a hostile claim.

The appellee's case rests entirely upon the theory that the presumption of Nicholl being alive, lasted for seven years from the date of his last letter, or until March 21, 1859, when it ceased, being followed by the presumption of his death from the last mentioned date, and as this suit was commenced March 14, 1866, the claim for dower was not barred by the limitation of seven years from the death of the husband.

The rule as found in Best, 191, is the English rule established in the case of Doe ex dem. Knight v. Napear, 5 Barn. & Adol. 6, and affirmed on appeal, in the Exchequer, in Napear v. Doe ex dem. Knight, 2 Meeson and Welsby, 894, but has not been adopted in this country, to the extent there laid down. Our courts have adopted the presumption of death after the lapse of seven years, leaving it imcumbent on the party who claims a benefit or interest on his being alive, within that time, to prove it. At what particular time a party died is of no importance, to one claiming a right which becomes established on a death, but it may be important to one resisting that right, and so it becomes an affirmative fact, which the party alleging must prove.

The common law, in accordance with the civil law, adopted the principle that the continuation of life should be presumed until the contrary was shown. The statutes of 1 James 1, Ch. 11, Sect. 2, in relation to bigamy, and 19 Charles 2, Ch. 6, in relation to leases determinable on lives, innovated upon this doctrine by the establishment of a rule, which was afterwards adapted by way of analogy, to cases not within the purview of these statutes. So that it has become to be regarded as a settled principle, that the absence of a party for seven years without any intelligence being received of him within that time, raises the presumption that he is dead, and the jury, on proof of such absence, have a right to presume his death. A less period will not suffice to raise the presumption, but a party whose interest it is to show he was living within that time, is at liberty to show it, by such facts and circumstances as will inspire that belief in the minds of the jury. As in this case, the demandant, to make out her right to bring her action, had only to show her husband had not been heard of from the 21st of March, 1852, to the 21st of March, 1859; the presumption of law then comes in, that he was dead on the 22d of March, 1859, being seven years from the time he was last heard of. This is all the proof she was required to submit, the marriage being established, and no question being made as to the title of her husband. When she, by competent proof, raised this presumption of death, to what period of time did it extend? The answer is plain, her right to sue did not exist until the death of her husband was established and as that was not established until the twenty first day of March, 1859, the presumption took effect on that day; then, in legal contemplation, her husband was not among the living. It was undoubtedly the right of appellant to rebut this presumption by showing, from facts and circumstances, that his death, in all probability, happened before that day, or on any day of any month or year between that day and the day on which he was last heard from. It was for her interest such proof should be supplied, and it was her duty to supply it. Lloyd v. Deakin, 6 E. C. L., 548; George and wife v. Jasson, 6 East, 309. The fact of death is presumed from and...