In re Mutual Benefit Co. , 174 Pa. 1 ( 1896 )

Pee Cxjeiam,

Appellant’s claim on the fund for distribution was based on a certificate of membership issued by the Mutual Benefit Company to her husband in 1876, coupled with averments of his death on October 10, 1881, and of her right as beneficiary to' the sum of $4,000, payable on the happening of that event. The burden of establishing the fact of his death on the last mentioned date was on her; and for that purpose testimony was introduced to prove circumstances attending his disappearance on that day, and that, notwithstanding diligent efforts were made to ascertain his whereabouts, etc., nothing has ever been heard of him. It was also shown that his relations in life, —business, social, domestic, etc., — -were all of such a character as to refute the theory of abandonment of family, friends, business, and everything calculated to conduce to his comfort and happiness.

Guided by the rule adopted by this court in Burr v. Sim, 4 Whart. 150, and rigidly adhered to in subsequent cases, among which are Bradley v. Bradley, 4 Whart. 173 ; Whiteside’s Appeal, 23 Pa. 114; Esterly’s Appeal, 109 Pa. 222, and Welch’s Appeal, 126 Pa. 297, the learned auditor and court below held that there was nothing in the facts of the case, as shown by the testimony, to warrant the presumption that appellant’s husband died at the time of his disappearance, October 10, 1881, or at any time within less than seven years thereafter. In this, we think they were clearly right.

In Burr v. Sim, supra, Mr. Chief Justice Gibson, after referring to the English rule, etc., said: “The presumption of death, as a limitation of the presumption of life, must be taken to run exclusively from the termination of the prescribed period; so that the person must be taken to have then been dead and not before. Indeed that is a necessary conclusion from viewing it, not merely as a limitation, but as a countervailing presumption, which, as it does not supplant its predecessor before the end of the period, assumes no more than that the individual and the period expired together; and the predecessor still being in force to rule the case in respect to the time covered by it, is sufficient to sustain an inference of intermediate existence throughout. Thus the presumption of life continues till it is displaced by a more potent one, which, however, has no retroactive force; and indeed it would be of little use if it had, for to leave the time of the death still uncertain, would leave a perplexity which it was its purpose to remove. It is undoubtedly true that additional circumstances of probability may justify a presumption that the death was still sooner; but these, where they operate, introduce a distinct and dissimilar principle.” To justify the introduction of that dissimilar principle, and its application in any Case, there must be, as was afterwards said, some “ evidence that the individual was, at some particular date, in contact with a specific peril as a circumstance to quicken the operation of time.” In the case now under consideration that element is entirely absent. There is nothing in the testimony to show that appellant’s husband, when last seen or heard of, was exposed to any such specific peril, or to any peril sufficient to take the case out of the operation of the general rule above stated. Mere general perils are not sufficient.

Burr v. Sim, supra, and subsequent cases, in the same line, have established a rule of property in this state which cannot be changed by us without disastrous consequences. Irrespective of that, however, it is more than doubtful whether any change or modification of the rule would be at all desirable.

Decree affirmed and appeal dismissed with costs to be paid by appellant.