On the presumption of survivorship / by James Bell Pettigrew.

Date:
1865
Catalogue details

Licence: Public Domain Mark

Credit: On the presumption of survivorship / by James Bell Pettigrew. Source: Wellcome Collection.

Provider: This material has been provided by the Royal College of Physicians of Edinburgh. The original may be consulted at the Royal College of Physicians of Edinburgh.

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    the administration of personalty, it is held that when parent, whether father' or mother,“ and child perish together, as in shipwreck, if the child be of the age of puberty he shall be presumed to have survived; but on the contrary, that he died first if he were under that age, regard being also had to the relation of the party who is to benefit by the decision. It may, however, hajipen in several ways“ that the mother may perish under the mins of a building sooner than the child whom she suckles; it may happen that a son may be killed in battle before his father; and on the same occa.sion, and likewise in all others, it may so fall out that they both die at the same instant,* or that even he who by reason of his age or some other infirmity might be presumed to die fii-st does nevertheless die the last;”—all which probabilities clearly demonstrate the necessity for ascertaining and fixing upon such law or laws as shall fairly meet the majority of cases: arbitrary to a certain extent they necessarily will be, but time and the experience which time begets would naturally tend to strengthen and consolidate a system founded on liberal and comprehensive principles. The spirit of the Roman law, says Beck,^ guided the decisions of the Continental tribunals for many ages; and Zacchias,® in his elaborate discussions on this question, cites cases from several jurisconsults which were settled according to the dicta of the civil code. The ancient French law took for the most part after the Roman; Le., it supposed the husband as surviving the wife, the son the father, if he had arrived at the age of maturity, and the reverse if he was still a minor; it was consequently open to the same objections as the civil. It, however, made a curious provision in cases where testator and legatee perished together, adjudicating the property in such instances to the heirs of the testator himself; inasmuch as, according to it, a man must have heirs, though not necessarily legatees.^ With a view to remedying the felt defects of previous enactments, the present French law as set forth in the “Code Napoleon” was framed. It runs as follows, and although by no means perfect, is greatly to be preferred to anything yet existing;— “I. If several persons, naturally heirs of each other, perish by the same event, without the possibility of knowing which died first, the presumption of survivorship shall be determined by the circumstances of the case, and in default thereof by strength of age and of sex. “ II. If those who perish together were under fifteen years, the oldest shall be presumed the survivor. “ III. If they were above sixty years, the youngest shall be presumed the survivor. Cam bello pater filio pertsset, materque filii quasi postea mortui bona vindicaret, agnati vero patris, quasi filius ante perlsset, Divus Hadrianus credidit patrem prius mortunm. Dig., Lib. 34, T. 6, 5, 9, S. 1, de Eebus dubiis. * Cam pubere filio mater naufragio periit; cum explorari non possit, uter prior extinctas sit, humanus est credere filius diutius vixisse ; 1. c. lex 22 * Domat. p. 651. ' i2^ of this occurrence as argued by Feame in his Posthumous Works, ® Beck’s Elements of Med. Jur., London, 1825, p. 211. Zacchias, vol. i. pp. 440, 441. 7 Fodcrc, vol. ii. p. 221.