Gantt v. American National Insurance , 173 Ga. 323 ( 1931 )

Hines, J.

This case is in this court upon the grant of a certiorari to review the decision of the Court of Appeals in Gantt v. American National Insurance Co., 41 Ga. App. 627 (154 S. E. 213). The Court of Appeals held that the presumption of death, arising where persons are away from their usual places of abode and have not been heard of for seven years, relates only to the fact of death, and that whenever the time of death is material in any case, it must be established by distinct proof, and can not he established by such presumption. This principle had been previously announced by the Court of Appeals in Ingram v. Metropolitan Life Insurance Co., 37 Ga. App. 206 (139 S. E. 363); but the latter decision was not referred to in the decision in the case which we now have under review. For convenience of reference we designate this principle as the English doctrine.

There is much conflict among the authorities upon the question whether the presumption of death from seven years absence raises a presumption of the death at the end of the seven-juar period. Many cases hold that the presumption arising from seven years absence of a party from his accustomed place of abode, unheard from, raises a presumption of death only and not of the time of death, the latter of which must be determined by the facts and circumstances of each particular case. It has been stated that this was the English rule and that that rule is sanctioned by the weight of authority in this country. 17 C. J. 1174 (§ 18) j; and cases cited in note 3. The reason for this rule was stated by Lord Denman, C. J., thus: “Now, when nothing is heard of a person for seven years, it is obviously a matter of complete uncertainty at what point of time in those seven years he died; of all the points of time, the last day is the most improbable and most inconsistent with the ground of presuming the fact of death. That presumption arises from the great lapse of time since the party has been heard of; because it is considered extraordinary if he was alive that he should not be heard of. In other words, it is presumed that his not being heard of has been occasioned by his death, which presumption arises from the considerable time that has elapsed. If you assume that he was alive on the last day but one of the seven years, then there is nothing extraordinary in his not having been heard of on the last clay; and the previous extraordinary lapse of time, during which he was not heard of, has become immaterial by reason of the assumption that he was living so lately. The presumption of the fact of death seems, therefore, to lead to the conclusion that the death took place some considerable time before the expiration of the seven years.” Nepean v. Doe, 2 M. & W. 895, 913, 150 Eng. Rep. (Reprint) 1021, 8 E. R. C. 512. On the contrary there are numerous eases which hold that in the absence of facts or circumstances to quicken the time, death is presumed to have occurred at the expiration of the seven years. Moffitt v. Varden, 5 Cranch C. C. 658 (Fed. Cas. No. 9689); Montgomery v. Bevans, 1 Sawy. 653 (Fed. Cas. No. 9735); Ashbury v. Sanders, 8 Cal. 62 (68 Am. D. 300); Burr v. Sim, 4 Whart. 150 (33 Am. D. 50); Crawford v. Elliott, 6 Del. 465; Whiting v. Nicholl, 46 Ill. 230 (92 Am. D. 248); Johnson v. Johnson, 114 Ill. 611 (3 N. E. 232, 55 Am. R. 883); Reedy v. Millizen, 155 Ill. 636 (40 N. E. 1028); Policemen’s Benevolent Asso. v. Rice, 213 Ill. 9 (72 N. E. 764, 104 Am. St. R. 190); Donovan v. Major, 253 Ill. 179 (97 N. E. 231); Connecticut Mutual Life Ins. Co. v. King, 47 Inch App. 587 (93 N. E. 1046); State v. Henke, 58 Iowa, 457 (12 N. W. 477); Spurr v. Trimble, 1 A. K. Marsh. (Ky.) 278; Schaub v. Griffin, 84 Md. 557 (36 Atl. 443); Newman v. Jenkins, 10 Pick. (Mass.) 515; Bailey v. Bailey, 36 Mich. 181; Chapman v. Kullman, 191 Mo. 237 (89 S. W. 924; Kauz v. Great Council, 13 Mo. App. 341; Smith v. Knowlton, 11 N. H. 191; Connor v. New York Life Ins. Co., 179 App. Div. 596 (166 N. Y. Supp. 985); In re Freeman, 227 Pa. 154 (75 Atl. 1063); Craig v. Craig, 8 S. C. Eq. 102. Fox convenience of reference we denominate this the American doctrine.

This principle is based upon the proposition that when a thing is shown to exist, its continuance is presumed until the contrary is shown or a conflicting presumption arises. Unless it is shown that death occurred prior to the expiration of the seven years absence, or some conflicting presumption arises from the facts proved, which would overcome the presumption of the continuance of life, the presumption of life would obtain until the full expiration of the period, when the contrary presumption of death, from the continued absence, would arise. In the absence of controverting facts, it will be presumed that life continued during the entire period. Eeedy v. Millizen, supra. The presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they Avere last known to be living. Bailey v. Bailey, supra; Smith v. UnoAvlton, supra. Death is not presumed to have occurred until the expiration of the seven years, although it may be shoAvn that death had occurred before the expiration of the seven years. Burr v. Sim, supra. In this State there is a presumption of law “of continuance of life for seven years.” Penal Code, § 1016; Civil Code (1910), § 5740. Hansen v. Owens, 132 Ga. 648 (64 S. E. 800). It necessarily follows from this presumption, that, in the absence of controverting facts, the death of a person, whose absence from his usual place of abode for seven years, and of Avhom nothing has been heard during such period, will be taken to have occurred at the end of such period. Otherwise the presumption of continuance of life, which is declared to exist under the above sections of our codes, would be meaningless. In one of the earliest cases decided by this court it was held, that, in the absence of facts or circumstances evidencing the contrary, death aaúII be presumed to have occurred at the expiration of the seven years. In Cofer v. Thurmond, 1 Ga. 538, this court held that where a person goes abroad and its not heard of for a long time, the presumption of the continuance of life ceases at the end of seven years from the period at which he was last heard of. In that case it was necessary to determine when an intestate died. Judge Nisbet said: “The intestate was last known to be living in 1794. In 1801, therefore, seven years from that time, according to Lord Ellenborough, the presumption of his being alive ceases.” Under both our Penal and our Civil Code, as we have shown, there is a presumption of law “of continuance of life for seven years.” Under these sections the continuance of life is presumed to exist for seven years from the time a person is last heard of, in the absence of proof to the contrary. It is unreasonable to hold, that, while the presumption of the continuance of life for seven years exists, at the end of the full period of seven years it will be held that the person died before the expiration of that period. While the presumption that death occurred after the expiration of the seven years is arbitrary, it is adopted as one of necessity. But for this presumption it would be impossible for litigants in many cases to establish the exact dates of death where they are unable to produce proof or to show circumstances tending to show the dates of such deaths. So the law establishes an arbitrary presumption by which the date of death can be shown when proof thereof can not be obtained. So we are of the opinion, that, in the absence of facts or circumstances tending to establish the date of death, death' is presumed to have occurred at the expiration of the seven years, the presumption of our law being that life continues for the period of seven 'years from the date when a person is last known to be in existence. This being so, we reverse the judgment of the Court 'of Appeals, and remand the case to that court for disposition in accordance with the above ruling.

Judgment reversed.

All the Justices concur, except Bech, P. J., and Hill, J., who dissent, and Gilbert, J., absent.