her present relations, nor any sufficient reason for a revocation of the guardianship.

A decree will accordingly be entered, denying the application for revocation of letters upon the merits. Application denied.

(77 Misc. Rep. 434.)

In re BENJAMIN.

(Surrogate's Court, New York County. August, 1912.)

DEATH (§ 2*)-PRESUMPTION EVIDENCE.

The presumption of death after seven years' absence may be rebutted by any inherent circumstance or expressly, and is applicable only when it is an irresistible inference from the facts found.

[Ed. Note.-For other cases, see Death, Cent. Dig. § 1-3; Dec. Dig. § 2.*] In the matter of the judicial settlement of the accounts of Mary I. Benjamin, administratrix of Ann Shannon. Decree rendered.

Hoadly, Lauterbach & Johnson, of New York City, for petitioner. Thomas Carmody, Atty. Gen., opposed.

FOWLER, S. This matter comes before the surrogate on the settlement of the final decree. The only question remaining concerns the disposition of the one-fourth of Ann Shannon's estate which prima facie belongs to Bridget Shannon, one of the sisters of the deceased. The surrogate is now asked not only to presume the death of Bridget Shannon from certain facts appearing only in affidavits made on the part of claimants to her interests, but that she died before her sister Ann. It is Ann Shannon's estate which is now the subject of consideration in this court, and prima facie Bridget Shannon is entitled to share in it. But it is asserted that from the facts stated in the affidavit the surrogate is bound to presume the death of Bridget Shannon before her sister Ann.

From the affidavits submitted, it would appear that Bridget Shannon, the alleged deceased, came to this country from Ireland about 1863, being then about 24 years of age. On her arrival she was employed in New Jersey as a domestic servant for about 10 years, when in 1873 she suddenly left her employment, without taking her trunk or belongings. She was then about 34 years of age and unmarried. Since then she has not been heard of by those of her relations living in New Jersey. Search was made at the time of her disappearance by her sister and her employer, but without avail. There is no evidence that the public authorities intervened in the affair, and the inference would seem to be that her disappearance was regarded as natural and voluntary. The value of her possessions abandoned is not given. It may have been trifling, or nothing. If the disappearance was natural, it may have been for some reason satisfactory to herself. As she was in 1873 young and in good health, the presumption of a continuation

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

of life to good old age is in her case very strong. Even so late as 1910, there could be no conclusive presumption, in this matter, from mere lapse of time, that she was then dead. But it is asserted by counsel that there is a conclusive presumption in law in this case that she is dead. This is the only point for my consideration at this time.

In this jurisdiction, where so many estates of persons of foreign origin come before the court, an inference of death from an established absence or disappearance from a former temporary place of abode is always attended with unusual dangers. It should be made, if at all, only with great caution and under circumstances tending to preserve the corpus of the estate against the possibility of a reappearance of the person who is thus sought to be constructively and by mere inference adjudicated to be dead. It would be a shocking thing lightly and on a slender presumption of death to take away property or an inheritance from an apparent owner, unrepresented, and give it to some one else, who is represented, to squander or to dissipate. If such an applied presumption of death proves contrary to the fact (as has been often the case), what would the owner of the estate or interest think of judicial procedure when he again appears to claim his inheritance? This is all that was meant to be implied in Matter of Matthews, 75 Misc. Rep. 449, 136 N. Y. Supp. 636, when it was intimated that a Probate Court ought not to presume the death of any person, other than that one whose estate was in court for the purpose of being administered. Although the actual decision in Matter of Matthews did not turn on that point, the surrogate then ventured to approve a suggestion, lately made by a distinguished English judge, to the effect that a presumption of death in probate courts should be confined to the death of the person whose estate was to be administered. Matter of Goods of Amelia Clark, 15 P. & D. 1. This decision is approved in the last authoritative work on modern English probate practice (Mortimer, London, 1911). The decision itself was in any event consistent with conservative procedure and wise practice on applications to Probate Courts for administration. Of course, we are all familiar with the principle that modern English decisions are without authority in this sovereign state. It is also true that, from many and wide differences between the two countries, such decisions should in any case always now be adopted with great caution.

It was not Mr. Justice Butt's own decision which attracted me, but his statement implying an ancient practice in probate matters, because, in the absence of any countervailing mandate, practice, or authority of my own state, it might be that such ancient practice would afford some criterion of the practice in this jurisdiction. Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 70, 74. Even if Mr. Justice Butt has been, as asserted, overruled in England, which is not found to be the fact, the surrogate would in a proper case be at liberty in this jurisdiction to adopt the view taken by the lower court as the modern decisions of England qua decisions have rightly no inherent force here. It is not so with the decisions of England which antedate our independence and embody the primitive common law. As stated by our old Court of Errors of this state, the doctrine of stare decisis in its

fullest extent compels us to follow the old decisions rendered before A. D. 1775, unless the particular doctrine enunciated is irrelevant or is abrogated by some constitutional limitation.

Had Mr. Justice Butt, in Matter of Goods of Clark, intended to enunciate a principle of English law which antedated our independence of England, the presumption, in the absence of any statute, practice, or decision of this state contrariwise, might well be, as stated, that the rule was still applicable in a court of probate in this state. But that proposition was not then critically examined, for, as before intimated, the decision in Matter of Matthews did not ultimately turn upon any such point. In that case the facts did not seem to warrant a presumption that one Julia Smith was dead, even if the presumption was properly applicable in that matter. At a later day a direct application was, however, made to the surrogate for letters of administration on the estate of Julia Smith. Citations were duly published, and on the return day evidence was taken and the application was granted by the surrogate; a proper bond being given by the administrator. Matter of Smith, 77 Misc. Rep. 76, 136 N. Y. Supp. 825. In this way every effort was made by the surrogate to guard against the misapplication of the estate of Julia Smith, dead or alive. To be sure, in Matter of Julia Smith the content of the presumption of death was somewhat considered, and her death generally was found by the surrogate to be prima facie established so far as was necessary to a decree for an administration thereof.

It may be that the decision of Mr. Justice Butt in Matter of Goods of Clark throws no light on the rules governing distribution of estates in the surrogates' courts, but that point I should wish to consider further. It is not necessary to consider it at this time. If the surrogates' jurisdiction over distribution is derived indirectly from other tribunals of this state, of course, such jurisdiction attracts to it all the principles of law, including rules of evidence, applied in such tribunals (Code Civ. Proc. § 2481, subd. 11), and Mr. Justice Butt's decision may then throw no light on the proper application of a presumption of death in such cases. If, on the other hand, the jurisdiction originally inhered in the courts of probate of New York (see Younge v. Skelton, 3 Hagg. 780), it may not be irrelevant.

In the cause at bar the able counsel representing the claimants to Bridget Shannon's share questions with much emphasis the rule announced by Butt, J., in England, and its application to any procedure in a court of probate of this state. Even if counsel prove to be right in this particular contention, as we may assume they are for present purposes, it is not difficult to show that their larger claim concerning the finality and the relevancy of the so-called. "presumption of death" in this matter now before me is founded on a misconception, and that is the only point before me here at this time.

The so-called presumption of death from uncontroverted proofs of disappearance, or unaccountable absence, of a person for seven or more years, is a very modern presumption. Thayer, Prelim.

Treat. Ev. 319. Before entering on a consideration of the law relative to this particular presumption of death, let us glance for a moment at the authorities relied on by counsel. Many of them are statements of text-writers of acknowledged merit. It is now generally conceded that the text-writers on the subject of evidence have interpolated, in the common law, much foreign law concerning presumptions, and that to some extent such interpolation is unauthorized by the common law itself. This is particularly true of many of the definitions and the classifications of so-called presumptions. In so far as such definitions and classifications are supported by common-law authority, they are entitled to respect, but no further.

No other department of the common law has in recent times been so influenced by unofficial text-writers as the law of evidence. This result, inconsistent with common-law development, is partly due to a modern and mischievous conception of the relevancy of evidence as a controlling test of the competency of such evidence at common law. Relevancy relates to logic and accurate reasoning, and not to the common law of evidence. The common law of evidence grew out of the formulary system and the original common-law actions, and at the maturity of that system the adjudged cases determined the competency of about all evidence admitted in particular actions. It was not logic, or some theory of relevancy, which determined the competency, but the adjudications. If there was no case in point, the evidence was usually rejected. This fact is well shown by a resort to the work and arrangement of early writers on evidence, such as Gilbert and Starkie. The reversal of this historical principle of evidence by modern scientific writers on evidence, their discussion of abstract questions of logic, and the unnatural extension of the common law of evidence to equity and even to probate tribunals, where it had no real or justifiable application, finally led to such refinements and confusion, in the general law of evidence, as to cause the whole modern law of evidence to fall into a condition of decay in the country of its origin, as is plainly asserted by a recent distinguished English writ er, one who is the highest authority on this subject. As an organon the modern law of evidence is, in other words, now greatly discredited in England. With us the law of evidence continues to flourish in great exuberance.

Among the other novelties recently imported into the modern. law of evidence, as it is displayed in recent text-books, is a resort to a highly artificial and foreign system of presumptions. This novel course has been much criticised, and most forcibly, by a critical law writer of unusual acumen. Thayer, Prelim. Treat. Ev. 341, 343, note. But it would seem as if a resort to the Roman terminology and classification, of which Professor Thayer complains, was almost unavoidable when the text-writers threw over the historical basis of the common law of evidence for some theory of logical relevancy. The trouble was with the departure, and, that tolerated, to what better place could such writers then resort than

to the great systems developed to perfection for thousands of years under Roman influences? Later Roman law was saturated with philosophy and scientific classifications. That the modern writers on English evidence went to such good sources is not their real demerit.

It has been well said "that Roman law has given to modern law much of its substance and a form, an arrangement and a method which will last as long as society itself," and that "the Roman law is the greatest single legacy which the ancient world has bequeathed to the modern world." But the difficulty for the English writers on evidence was that they had to alter and to adapt the Roman law relative to presumptions, in order to fit it in some measure to the case law of England, a process which Professor Thayer evidently thinks prejudicial to both systems. I am not exculpating the text-writers, for it must be conceded that the product of such labors is wholly unauthorized, excepting in so far as it is supported by common-law adjudications of authority. It is not to the text-writers cited to us, however excellent they may be, that we must look for the definition, content, and application of presumptions in this cause, but wholly to common-law adjudications of weight.

It has been thought advisable, before entering on the consideration of the adjudications, which alone control this present application, to offer these general reflections bearing on the texts of the existing law of evidence, because such literature is much insisted. on in the briefs of counsel, whereas it is cogent only in so far as it correctly expresses the adjudications. It is the courts which furnish the common law of evidence to the text-writers, and not the text-writers who furnish the common law of evidence to the courts. In this particular, the difference beween the authentics of our common law and of the civil law is very marked. For the selfevident proposition, that the cases alone constitute the law of evidence, such a long digression was perhaps unnecessary; but it can do no harm to emphasize the proposition itself.

The term "presumption," as a term of art, is comparatively modern in the common law. Before the year 1814 we hear little of it, and it is even now doubtful whether it has any precise technical meaning in the common law. The latest suggestion of the textwriters is to throw overboard the term "presumption" and all its modern paraphernalia. Chamberlayne, Mod. Law Ev. § 1026. Certainly this term is often employed colloquially and untechnically in very contradictory senses in the case law of England and America.

It is, of course, not pretended in this cause that the "presumption of death" is what common lawyers accurately call an "irrebuttable presumption" and the civilians "præsumptio juris et de jure." It is now generally conceded that all such irrebuttable presumptions are substantive rules of law, and have intrinsically nothing to do with the law of evidence, although spoken of in the terms