Citation Numbers: 219 S.W.2d 42, 309 Ky. 794
Judges: OPINION OF THE COURT BY JUDGE CAMMACK
Filed Date: 3/22/1949
Status: Precedential
Modified Date: 1/12/2023
Affirming.
The purchaser at a partition sale is appealing from the judgment ordering the sale on the ground that it was error to declare Charles M. Rogers, Jr., to be dead and his brother, Elmer F. Rogers, to be his only heir. Reversal is urged upon the grounds that (1) the departed was never a resident of Kentucky, and therefore our presumption of death statute (KRS
Charles M. Rogers, Jr., who, if living, would be the owner of an undivided 1/20 interest in the property in question, was born in Oklahoma and lived there continuously first with his parents, then with his brother, until he was 17 years of age. According to the testimony of *Page 795 his brother, Charles told him in 1922 that he was going out to see the world. He thereupon left and has not been heard from since that date. There is testimony that a newspaper clipping stating that a Charles Rogers had been killed in Texas was shown to the brother, but no investigation was made.
KRS
It would appear from the able briefs filed by counsel for both parties that there is confusion in the decisions of this Court as to the application of the common law rule relating to the presumption of death. The opinion in the case of Prudential Insurance Co. v. Gatz,
"* * * We are therefore unwilling to interpolate into our statute, declaratory of the common law, the necessity for diligent search and inquiry before a presumption of death can arise after an unexplained absence of seven years from the place of residence, although such interpolations seem to have been made in both the common-law rule and statutes almost identical with ours by the courts in some jurisdictions."
The case of Hill's Adm'x v. Metropolitan Life insurance Company,
In the case of Bechtold v. Klefken,
In the case of Metropolitan Life Ins. Co. v. Smith's Adm'x,
We think the case at bar comes within the scope of the rule discussed in the Hill case, which has been followed consistently by this Court. Elmer F. Rogers, with whom the departed made his home after the death of his parents, was the person who most naturally would have heard of or from him if he were living. This witness said that he had not heard of his brother since he left home in 1922. We think this evidence, coupled with the circumstance of the departed's long absence, met the burden placed upon the plaintiff to bring forth evidence showing that the departed had not been heard from for more than seven years and that inquiry had been made of those who would most likely have heard of or from him. Since no evidence was produced to refute the presumption, *Page 797 the chancellor was warranted in finding that Charles M. Rogers, Jr., is dead.
Judgment affirmed.