another." This case was followed by that of Taylor v. Diplock, (q) in which J. T. had constituted his wife sole executrix and residuary legatee. Both husband and wife were drowned in a transport on the 14th January, 1814; whereupon a question arose, whether the relations of the husband, or those of the wife were entitled to the residue. The point appears to have been fully argued, when the authorities from the civil law and the two previous cases were cited, and the following judgment was delivered by Sir John Nicholl:-" This case is under singular circumstances; it arises upon the grant of an administration, with the will annexed, of J. T.; and the question is, whether the administration is to be granted to the next of kin of the testator, or to the next of kin of the residuary legatee. . . . The first and preliminary question is, on which side lies the pre Think [ *196 ] sumption? on whom the burden of proof? The administration prayed is not to the wife, but to the husband-primâ facie, it belongs to the next of kin of the party deceased; to him and to his property, the wife, or next of kin, has a right to administer under the Statute of Administrations. But it is laid down in the books, that, in case of there being a residuary legatee, the statute does not apply. The next of kin has the primâ facie right; but if there is a residuary legatee, he would be entitled: there is no such person here, for the party claims derivatively from the residuary legatee. The burden of proof lies on him to shew that the deceased left a residuary legatee; the next of kin of the residuary legatee is to shew that the wife survived her husband. The same was the rule in the civil law, as has been satisfactorily stated in argument-the proof of the wife's surviving must be shewn, otherwise the deceased left no residuary legatee.... The civil law is in favour of the last possessor. ing, as I do, that it is incumbent on the next of kin of the wife to prove her survivorship, how stands the case on the evidence? There is no direct evidence as to the point." [The learned judge here went into an examination of the evidence, which was in some respects contradictory, and, in the course of his observations, says]—" None of the witnesses represent the husband at the moment to have been in a weak infirm state; none represent him as having lost his recollection. Looking at their comparative strength, there is nothing to take away the ordinary presumption, that a man was likely to survive a woman in a struggle of this description; still less is there any thing to prove the contrary. Upon the whole, I am not satisfied that proof is adduced that the wife survived. Taking it to be that [ *197] both died together, the administration is due to the representative of the husband. I assume that they both perished at the same moment, and therefore I shall grant administration to the representative of the husband. I am not deciding that the husband survived the wife." The next case is that of Mason v. Mason.(r) A father bequeathed his personal property to trustees, to pay to each of his children who should be living at the time of his death £5000, to be paid to the sons at twenty-one, and to the daughters at twenty-one or marriage respectively, with benefit of survivorship, in case any (q) 2 Phill. 261, decided April 12, 1815. should die before their portions were respectively payable. The testator had ten children, nine of whom survived him; and he had, in January, 1809, embarked with his son Francis in a ship bound from Bengal to England, which was lost on her voyage, and all on board perished. The case came on for further directions, the Master having stated in his report that he was unable to state whether Francis survived his father or not, when Sir W. Grant, M. R., said, "There are many instances in which principles of law have been adopted from the civilians by our English courts of justice, but none that I know of in which they have adopted presumptions of fact from the rules of the civil law. In General Stanwix's case, I thought the stress of the argument to be in favour of the representatives of the father. There were three contingencies: either the daughter survived the father, or the father the daughter, or both perished at the same instant. In the first of these cases alone would the representatives of the daughter have been entitled, those of the father in either [ *198 ] "of the two last. There were, therefore, two chances to one in favour of the latter. In the present case, I do not see what presumption is to be raised. Since it is impossible you should demonstrate, I think, that if it were sent to an issue, you must fail for want of proof." The plaintiff's counsel, however, pressing the matter, an issue was directed, to try whether the son, Francis, was living at the death of the testator. The result of that issue does not appear to be known. The next case is that of Colvin v. H. M. Procurator-General,(s) where an intestate was drowned, together with his wife, by the upsetting of a boat in the river Ganges. An application for administration having been made by a creditor, Sir J. Nicholl is reported to have said, that, "in strictness, the representatives of the wife ought to have been cited; but us the prima facie presumption of law was, that the husband survived, and as the property was small, and the debt large, the decree might pass." In the next case, In the Goods of Selwyn,(t) where a party directed, that his wife, if living at his decease, should have all his property, and be sole executrix, and, in the event of her dying in his lifetime, then the will appointed three executors and trustees; the testator and his wife perished at sea on the 18th August, 1831, but no proof could be obtained as to the exact time at which either died; their bodies were found floating near the shore some few days after the wreck. Probate having been prayed on the part of the substituted executors, Sir J. Nicholl said, Instances have occurred, where, under similar circumstances, the question has been, which of two persons survived; but, in the absence of clear evidence, it has generally been taken that [ *199 ] both died at the same moment." [The learned judge here referred to Taylor v. Diplock.] "Here the wife and her representatives would have no interest in the effects, unless under the words ' in case she should be living at his death.' The only difficulty arises from the other clause, providing that the substitution of the executors, and the devise over, shall take effect in the event of her ' dying in his lifetime.' Without going into the general presumption, that the (8) 1 Hag. N. S. 92, Mich. 1827, (3 Eng. Eccl. Reps.) husband was the stronger, and therefore survived, the intention is so clear, that whatever might be the construction of the words in other courts, I shall decree probate to the substituted executors in common form; the next of kin making no opposition to the grant, and having it in their power, if they should hereafter see fit, to call in the probate and contest the point." In the case of The Goods of Murray, (u) it appeared that the deceased, with his wife and only child, proceeded on a voyage from Dublin to Quebec; that during a heavy gale, the vessel struck the land, at which time the deceased was on deck, his wife and child being below in the cabin. The deceased then went below, shortly after which the vessel again struck, and went to pieces, and all three were drowned. The deceased having left a will, bequeathing the whole of his property to his wife, the court granted administration cum testamento annexo to the next of kin of the husband, as a widower; "there being (says the report) nothing to shew that the wife survived, the next of kin of the wife consenting." The next year the case of Satterthwaite v. Powell(v) came before Sir [ *200 ] Herbert Jenner. By a marriage *settlement bearing date the 19th February, 1811, certain property was settled to the separate use of the wife for life, and after her death for the husband for life, in case he survived her; and after the death of the survivor, then, as she should appoint by deed or will, among her children; but in case of the children dying under twenty-one, and unmarried, and in default of appointment, then in trust for her executors, administrators, and assigns, and personal representatives, for their own use. The deceased made no apppintment, and died intestate, having been drowned at sea with her husband and four children, when the ship was lost and every one on board perished. Letters of administration having been granted to her mother, as her next of kin, who died leaving part of the goods unadministered, the question was raised, whether administration of the unadministered effects should be granted to the next of kin, or to the representatives of the husband, and the doctrine of the civil law and Taylor v. Diplock were referred to. Sir H. Jenner, in delivering judgment, said, "It appeared to me that this point was settled; the principle has been frequently acted upon, that, where a party dies possessed of property, the right to that property passes to his next of kin, unless it be shewn to have passed to another by survivorship. Here, the next of kin of the husband claims the property which was vested in his wife; that claim must be made out; it must be shewn that the husband survived. The property remains where it is found to be vested, unless there be evidence to show that it has been divested. The parties in this case must be presumed to have died at the same time; and, there being nothing to shew that the husband survied his wife, the [ *201 ] *administration must pass to her next of kin." The last case on this subject seems to be that of Sillick v. Booth,(x) in which the question of survivorship among males arose before. Knight Bruce, V. C., but the case was decided on the evidence, without touching this point. (u) 1 Curtis, 596, Hil. T. 1837, (6 Eng. Eccl. Reps.) (v) Id. 705, January 31, 1838, (6 Eng. Eccl. Reps.) (x) I Y. & Col. N. C. 117, December, 12, 1841. § 144. The true conclusion seems to be, that the law of England recognises no artificial presumption in cases of this nature,(y) but leaves the real or supposed superior strength of one of the parties perishing by a common calamity to its natural weight, as a circumstance proper to be taken into consideration by a jury or ecclesiastical judge called on to determine the question of survivorship, but which circumstance, standing alone, is insufficient to shift the burden of proof. If, therefore, the party, who, by laying claim to property on the ground of survivorship of one individual over another, takes upon himself the onus of proving that survivorship, has no further evidence than the assumption,(z) that, from age or sex, one party struggled longer against their common death than his companion, [ *202 ] it seems that no decree would be made in favour of the claim. But, on the other hand, it is not quite correct to say that the law presumes both to have perished at the same moment-this would be to establish an artificial presumption against manifest probability; although the practical consequence is in many cases the same, because, if the party on whom the onus of proof lies cannot show affirmatively which died first, the question will necessarily be treated by the tribunal as a thing from its nature unascertainable, and that, for all that appears to the contrary, both individuals may have died at the same moment. It is submitted, that, in this way, most, if not all, the cases may be explained and reconciled. (a) *CHAPTER VII. [ *203 ] PRESUMPTIONS IN DISFAVOUR OF THE SPOLIATOR. § 145. THE rule "Omnia præsumuntur contra spoliatorem," (a) that all things are to be presumed in disfavour of the spoliator, (b), is rather a favourite maxim in the law,(c) and rests partly on natural equity, partly on convenience. One of the leading cases on the subject is that of Armory v. Delamirie, (d) where a person in a humble station (y) Greenl. L. E., art. 29, p. 35. 4 Burge's Colonial Law, 27; 1 Phill. & Am. Ev. 469. (z) We say assumption, for in many cases it is nothing more. Prima facie, a male would struggle longer than a female, if they were placed in exactly similar circumstances with respect to the impending danger; but where a ship has foundered at sea, who is to decide that question? And occasionally the superior health or strength of the female would reverse it all. It is right here to allude to a statement made by some modern physiological writers, that, in some species of deaths, the strongest persons perish first. In deaths from the effects of carbonic acid gas, for instance, the female adult is said to survive longer than the male adult. See the authorities cited in Beck's Med. Jurisp., p. 397, 7th ed., who also relates an incident furnished by a modern traveller, who, in giving an account of a caravan coming in want of water in a Nubian desert, says, " that the youngest slaves bore the thirst better than the rest, and that, while the grown-up boys all died, the children reached Egypt in safety." (a) The presumption of survivorship of mother or child, when both die during delivery, is more properly a medical than a legal question. See on this subject, Beck's Med. Jurisp., chap. 10, p. 387, 7th ed. (a) 1 Stark. Ev. 564, 3rd ed.; 2 Evans's Poth. 336. (b) 17 Ho. St. Tr. 1430. (c) Mr. Smith's note to Armory v. Delamirie, 2 Smith's Leading Cases, 153. (Law Library.) (d) 1 Strange, 505. of life having found a jewel, took it to a goldsmith's shop to inquire its value, who, having got the jewel into his possession under pretence of weighing it, took out the stone, and on the finder refusing to accept a small sum for it, returned to him the empty socket. An action of trover having been brought to recover damages for the detention of the stone, Pratt, C. J., directed the jury, that, unless the defendant produced the jewel, and shewed it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages. So, in the recent case of Mortimer v. Craddock,(e) which was an action of trover for a necklace, consisting of several diamonds, which had been unlawfully taken out of the owner's possession; and some of the diamonds were seen shortly afterward in the possession of the defendant, *who could give no satisfactory account how he came by [ *204 ] them. On this it was held that the jury might fairly be directed to presume that the whole set of diamonds had come to the defendant's hands, and that the full value of the whole was the proper measure of damages. In the great case of Annesley v. The Earl of Anglesey, the circumstances which pressed most against the defendant were, that he had caused the plaintiff, who claimed the title and family estates as heir, to be kidnapped and sent to sea, and afterwards endeavoured to take away his life on a false charge of murder-facts, which one of the learned judges said, spoke more strongly in proof of the plaintiff's case than a hundred witnesses. (f) So, in highway robbery, the law, in odium spoliatoris, will presume fear whenever property is taken with such circumstances of violence or terror, or threatening by word or gesture, as would in common experience induce a man to part with his property from an apprehension of personal danger;(g) so that, even where the prosecutor sought out the robber, and submitted to be robbed by him, for the purpose of bringing him to justice, this was held to be robbery on the part of the prisoner.(h) So, in the Roman law, although the general rule was that money paid was presumed to be in discharge of a debt, yet where a man, sued for a debt, denied having received the money, proof that he had in point of fact received it turned on him the burden of shewing that it was in payment of a debt.(i) § 146. But the most important and usual application of this princi[ *205 ] ple is where there has been any malpractice in forensic proceedings, by eloigning, suppressing, defacing, destroying, or fabricating documents or other instruments of evidence, or introducing into a prosecution or defence any species of the crimen falsi. This not only raises a presumption that the documents or evidence eloigned, suppressed, &c. would, if produced, militate against the party eloigning or suppressing them, but procures more ready admission to the evidence of the opposite side.(k) "When," says Lord Holt, "a man destroys a thing that is designed to be evidence against himself, a small matter will supply it." This rule is evi (e) 12 Law J., N. S., 166, C. P. (f) 17 Ho. St. Tr. 1430; per Mounteney, B. (g) 2 East, P. C. 711. (h) Norden's case, Foster's C. L. 129. (i) Dig., lib. 22, tit. 3, 1. 25. (1) Anon., 1 L. Raym. 731. (k) 1 Phill. & Am. Ev. 466, 458; 1 Stark. Ev. 564, 3rd ed. See Roe d. d. Haldane v. Harvey, 4 Burr. 2484. |