Corley v. Holloway , 1885 S.C. LEXIS 33 ( 1885 )

The opinion of the Court was delivered by

Mr. Justice McIver.

Ransom Holloway, being seized and possessed of the land, which is the subject of contention in this case, departed this life intestate on May 14, 1862, leaving as his heirs at law his widow and eight children. One of these children, Henry W. Holloway, intermarried with the plaintiff, who bore to him two children, one of whom died in September, 1862, and the other in January, 1865. This is a proceeding for the partition of the said land, in which a claim is made that the widow of the intestate shall account for the ■ rents and profits thereof, under the allegation that she has enjoyed the exclusive use of the land. Henry W. Holloway was á soldier in the Confederate army and disappeared at the battle of Deep Bottom on July 28, 1864, and has not since been heard from. The plaintiff claims that he was killed in that battle, and that his; share of his father’s estate, as well as his share of the estate of his two brothers, who died intestate after their father, one in May, 1862, and the other in May, 1864, descended to her as his widow and his child, and that by the subsequent death of' the child in January, 1865, the whole interest became vested in her. This claim is disputed by the defendants, who allege that there is no evidence sufficient to show that Henry W. Holloway predeceased his child, and hence that the plaintiff, as his widow, is only entitled to one-half of his estate,, and his next of kin to the other half. They also dispute the claim for an account of the rents and profits from the widow. The Circuit judge sustained the positions taken by the defendants and rendered judgment accordingly. From this judgment plaintiff appeals upon the various grounds set out in the “Case.”

The main question in the case is whether Henry W. Holloway predeceased his child, who died in January, 1865, and this really turns upon the question whether the evidence shows that Henry W. Holloway was killed at the battle of Deep Bottom, on July 28, 1864. There is no direct evidence of this fact, but the plaintiff claims that it must be inferred from the fact that he was then last seen, and has not been heard from since — a,period much more than seven years. The rule, as we understand it, is that "when a person has been shown to be alive at a certain period, the presumption is that he continued to live for at least seven years; but that when he has been missing, and has not been heard from during that period of time, then the presumption is the other way. But these are both mere presumptions of fact, capable of being rebutted by evidence of such facts or circumstances as will be sufficient to induce a different conclusion. From this follows another rule, that the burden of proof is upon him who undertakes to overthrow the presumption. For example, a party who claims that a certain individual was dead at a certain time, prior to the expiration of the period of seven years from the time wrhen he was last heard from, must overcome the presumption of continuance of life, for that period of time, by evidence of such facts and circumstances as will be sufficient to rebut such presumption. But on the other hand, when a party claims that a certain person was alive after the expiration of seven years from the time when such person was last heard from, the burden of proof is upon him to show such facts and circumstances as will be sufficient to rebut the presumption of death arising from his being absent and not heard from for a period of seven years. This latter presumption, however, does not fix absolutely the time of the death, either at the end, or at the commencement, of the period of the seven years, but that is a matter to be determined by the facts and circumstances of each particular case. These principles are fully sustained by the elementary writers, as well as by our own cases. 2 Stark. Evid., 457-8; 1 Greenl. Evid., § 41; 2 Ibid, § 278f; Chapman v. Cooper, 5 Rich., 452; Canady v. George, 6 Rich. Eq. 103.

In Godfrey v. Schmidt (Cheves. Eq., 57), the question whether a person absent and not heard from for a period of seven years, is to be presumed to have died at the commencement, or at the expiration, of that period, is left open, and authorities are cited both ways. The only case in this state, however, which is cited to sustain the doctrine that the presumption is that the death took place at the commencement of the seven years, is a Circuit decision of Harper, Ch., in Naisor v. Brockaway, Rich. Eq. Cas., 449; while, on the other hand, the Court of Appeals in the case of Craig v. Craig [Bail. Eq., 102) fixed the time of the death at the expiration of the period of seven yeats. The view taken by Chancellor Harper, in his Circuit decision above cited, is evidently not sustained by the more recent cases, and is not sustained by reason. As is said by Wardlaw, J., in his separate opinion in Chapman v. Cooper, supra, in speaking of this question as to whether the time of the death is" to be fixed at the beginning or the termination of the seven years: “To fix the time at the end of the seven years would be almost always contrary to the fact; to fix it at the beginning, immediately after the continuance of life had been positively ascertained, would be plainly contrary to truth and common-sense. Circumstances may enable a jury to say when it took place, Or that it preceded a given event within the seven years. But there must be some circumstances to overcome the presumption that life continues for at least seven years; or if • that presumption has been overcome by the lapse of the seven years, to fix at one period rather than another, the time of death left wholly uncertain; and these circumstances must be shown by the party whose interest it is to establish the time of death anterior to the expiration of the seven years.”

Considering this case, then, in the light of these principles the question presented is really a question of fact, and under the well settled rule the conclusion reached by the Circuit judge must be sustained, unless it is without any testimony to sustain it, or is manifestly against the weight of the evidence. We not only do not think that this is the case, but we fully concur in the conclusion reached by Judge Cothran, and deem it scarcely necessary to attempt to add anything to what he has so well said. To sustain the claim of the plaintiff, it was necessary for her to show that Henry W. Holloway died prior to January, Í865, when her child died; and the burden of proof was upon her to show this fact. Practically she was bound to show, by the preponderance of the evidence, that her husband was killed in the battle of Deep Bottom; but, in our opinion, the testimony rather tends to show that he was captured, and not killed, in that battle. He had passed through the thickest of the fight unharmed, and when last seen he was at a place where there was but slight danger of his being killed by the bullets of the enemy, but where he was in the greatest danger of being captured, and the natural inference would be that he was captured. If the testimony had been that, when last seen, he was going into battle where-many were killed, there might- have been good ground for the inference that he was killed. Such, .however, is not the testimony; but, on the contrary, the testimony tends to show that when he was last seen the battle was practically over, or at least was not raging at the spot where, he was seen alive and unharmed, and that the real danger to which he. was exposed, was capture and not death. But we do not propose to discuss the testimony, being quite willing to adopt the view of it taken by the Circuit judge.

The next question raised by the. grounds of appeal, is as to the competency of the testimony of W. Y. Corley, in regard to his interview with a member of a North Carolina regiment on his return from prison, in which he learned that he and Henry W. Holloway had been in prison together, and as to the competency of Capt. Holloway’s testimony, in which he stated that W. Y. Corley had communicated.the fact of such interview to him, upon his return to camp. Inasmuch as this testimony was not ruled competent by the Circuit judge, and as he says expressly that he did not consider' it in reaching his conclusion, we do not see how it can afford any basis for a ground of appeal. Whether the testimony was competent or incompetent (about which we do not wish to be understood as intimating any opinion), is wholly immaterial, for practically the judge did rule it out.

The only remaining inquiry is as to the claim for rents and profits. It is quite clear that this claim cannot be allowed. In the first place, it does not appear satisfactorily that the widow cultivated more than her share of the land, and, in the second place, the testimony shows that she used the land by the permission and acquiescence of all the heirs, including the plaintiff, and this alone would be sufficient to exclude her claim for rents prior to demand, which was not made until this action was commenced; and that she has been allowed.

The judgment of this court is that the judgment of the Circuit Court be affirmed.