Chapman v. Kimball , 83 Me. 389 ( 1891 )

Peters, C. J.

Ebcnezer Eames by his will dated in February, 1870, bequeathed to the defendants, in trust, a portion of his estate, to remain in their hands for a period not exceeding fifteen years after his decease, and then to be distributed among the survivors of certain grandchildren whom he names as entitled, to shares. He died in November, 1870. Among those named was Leander T. Chapman, whom the other heirs allege to have been a long time deceased, whose share they seek by this bill in equity to have distributed to themselves. They have received the other shares of the estate.

Whether Leander shall be presumed to be deceased or not is the question presented. The trustees only ask protection against a liability to pay over the fund twice, making otherwise no objection to the bill.

The following facts are deducible from the testimony: Leander, who would now be, if alive, fifty years old, leaving his father’s home, in Oxford County, in 1866, went to Kidder, Missouri, and thence to Liberty, in that state, where he remained some time engaged at work in different employments. In 1869 he was taken ill in the latter place, having a long and severe sickness. During his absence he habitually wrote home to different members of his father’s family, there never having been any alienation of affection on either side. During his sickness, August 24, 1869, he wrote home for money and it was sent him. Since 1869 or 1870, none of the family or friends have ever heard from him. He wrote that he should go to Indiana, where an uncle lived, but he did not go there. No person has given any trace of him since that time, excepting that one Judge Jones, of Liberty, in response to a newspaper advertisement inquiring for his whereabouts, writes that he worked awhile for him, ivas in poor health at the time from lung complaint, and went to Chico, California, thinking it might be of benefit to his health, from which place he last heard from him in 1870. Up to the time wlien any trace of liim was had, ho had not been married. His friends have thoroughly searched over Liberty and Chico, and do not obtain, any clue to him since 1870, in any place.

Do these facts create a presumption that the man is dead? The general rule is familiar. If a person leaves his usual home for temporary purposes, and is not heard of or known to be living, for the term of seven years, by those persons who would naturally have heard from him during the time had he been alive, the presumption is that he is dead. The rule does not confine the intelligence to any particular class of persons; it may be persons in or out of the family. Wentworth v. Wentworth, 71 Maine, 72, and cases there cited.

Tn what respect, if any, do the facts of the present case present either a weaker or stronger case than that defined by the general rule ? It may be said that he did not have an avowed intention of returning to Oxford County,— that his absence was not intended to be merely temporary. But he had no home or family or business away from home to induce a permanent absence. He was seeking labor, and was probably attracted to Liberty, because an Oxford man lived there, with whom he hired. He had been out West before, returning to his Oxford home. In poor health, the instinctive disposition would he to return at some time to his father’s home. The person who took care of him wrote during his severe sickness, "He always says he wants to die in his father’s house.” He kept up family relations by frequent letters. It is significant that when his letters ceased in 1870, all persons ceased to have any intelligence of him. There was no cause, if alive, for his breaking off the habit of writing to his friends at home. He had reason possibly to suppose that this very inheritance would be awaiting him. If not at his father’s house, where was Ms home? If in Liberty or Chico, Ms absence from those places for twenty years, without any trace of him elsewhere, is just as unaccountable. But the present facts are in several respects stronger than those of the general rule. The unexplained absence from all known friends for so long a period as twenty years, instead of seven, very greatly strengthens the presumption. Superaddod is the important fact that he was a man of ill-health, and weak constitution. During his sickness he writes his father that his weight was ninety-six pounds. He had congestion of the lungs, according to the nurse’s account, and Judge Jones, writes that his health was impaired by a bad lung affection. We think the bill must be sustained. It makes no difference that personal and not real estate is involved. Stockbridge, Petitioner, 145 Mass. 517.

The defendants take the point that it must be shown that the missing man is deceased, leaving no children to succeed to his inheritance. The burden is the other way. The defendants may show he left direct heirs. If the man cannot be found or his fate ascertained, it would be a difficult hunt to find children. Loving v. Steineman, 1 Met. 211.

The defendants would like the security of bonds of ideumity from the complainants. The proof is so conclusive it would not be reasonable to require sureties from them, or even that they shall stand bound for one another. But, as the court has the power to take the fund from the defendants and commit it to the complainants as provisional trustees, each complainant who is sui juris giving his own bond for the portion coming to his hands, a decree may be constructed, if the defendants desire that measure of protection, to that effect. The infant complainant, cannot give a bond, and the guardian ought not to be required to give one for her.

We think counsel fees for each side and complainants’ costs should be allowed out of the fund, the amount of which may be determined by a single judge. Pill sustained.

Walton, Virgin, Libbey, Haskell and Whiteiiouse, JJ., concurred.