prior devises having failed, have title as against the heirs at law.

We may turn now to a consideration of the condition. The House of Lords, Lord Chancellor Campbell dissenting, interpreted it literally. They thought that while one. might reasonably conclude that the testatrix wished Wing to have the property in case her husband did not live to need it, yet the prior death of the husband was the only circumstance she had in mind by which the husband would cease to need it; that for this circumstance and it alone she provided; that she did not provide for the contingencies of simultaneous death or inability to determine which died first; and that therefore, one of those possibilities having happened, there was an intestacy. Exactly contrary to this conclusion of the highest court in England is that of the highest tribunal in America. In Young Women's Christian Home v. French1 it appeared that the testatrix disposed of her property first for the benefit of her husband and son, adding, "In the event of my becoming the survivor of both my husband. and of my son. I then give . . . all my property... to the Young Women's Christian Home. . . . The husband died first. The testatrix and her son were lost together in a steamer collision. The representatives of the mother, the representatives of the son, and the Home claimed the property. The court held that the Home had the title. The representatives of the son rightly failed, since they claimed through the son, and so had the burden of establishing his survivorship, which they could not sustain., The great question was, could the Home make out its title as against the representa tives of the mother (the testatrix), who would clearly be entitled if all the gifts failed. It could no more prove the performance of the condition, literally interpreted, than could Wing in Wing v. Augrave. The Supreme Court, however, thought that the condition 187 U. S. 401, 23 Sup. Ct. 184 (1902).

2

Unanimously. Chief Justice Fuller rendered the

opinion.

should not be taken literally; that from the whole will it appeared that the testatrix intended to dispose of all her property; that her intention, "failing husband and son, was that the Home should take;" and that a literal interpretation would defeat this intention. They held that whether "my becoming the survivor" or "neither surviving me" was used to express the condition was immaterial; that since property is disposed of as if "each survived as to his own property" in this case it must go as if the testatrix survived, namely, to the Home. One agreeing with this result might wish to express the reasons somewhat differently. Possibly the condition could be construed to mean "in case the gifts to my husband and son fail." The Home could prove the happening of that event. Language may be given the meaning it had to the testatrix. But granting the position of the House of Lords that these words provided only for the contingency of prior death, it may yet be thought that the intention to dispose of all her property, and to the Home if neither husband nor son could take, adequately provides for the contingencies of simultaneous death or inability to determine the order of death. According to this intention, which is expressed by the will as a whole, the Home clearly was entitled. As the Supreme Court said: "This is not a case of supplying something omitted by oversight, but of intention sufficiently expressed to be carried out on the actual state of facts." The argument of Lord Chancellor Campbell, dissenting, in Wing v. Augrave and of Chief Justice Fuller in Young Women's Christian Home v. French seem to the writer unanswerable. The English courts have, of course, followed Wing v. Augrave. In the United States the

3 This is only a way of saying that property is disThis sort of statement posed of as if all died at once. has been dealt with, supra, pp. 237-238.

4 In Wing v. Augrave, supra.

authorities support Y. W. C. Home v French.1

But it is to be noticed that this conflict of authority concerns merely the true construction to be given documents like those in question. The divergence of opinion is as to how far an intention gathered from the whole document may modify or supplement a particular phrase. Granting the English construction, the rule for determining the burden of proof remains the same. Performance of the condition is one of the links in the devisee's chain of title. Though all prior devises fail, he is not entitled unless the condition was performed. He must, therefore, show survivorship of the testatrix to make out his own case.

A number of cases involve the application of the same rule as between substituted devisees or legatees under a will and the representatives of those for whom they are sub stituted, the latter having deceased in the same catastrophe as the testator. The representatives of the prior beneficiaries fail beliberal construction, Goods of Selwyn, 3 Hagg. Ec. 748 (1832). But in Underwood v. Wing, 4 De G. M. & G. 633 (1855) the strict view was taken. This was adopted in Wing . Augrave and has since prevailed. Elliott z. Smith, 22 Ch. Div. 236 (1882); Goods of Alston, [1892] P. 142; Hartshorne 7. Wilkins, 2 Old. 276 (Nova Scotia, 1866). It is perhaps worth remarking on account of the very common opinion to the contrary, that Underwood v. Wing and Wing 7. Augrave are entirely distinct cases, though arising out of the same facts. Mrs. Underwood represented the next of kin of a surviving daughter of the deceased husband and wife and was claiming all the property except that over which the wife had merely a power of appointment. This latter property was claimed by Mr. Augrave representing the devisees, in default of appointment by the wife, nominated by her father's will.

1 Middeke 7. Balder, 198 Ill. 590, 601, 64 N. E. 1002 (1902); Fuller 7. Linzee, 135 Mass. 468 (1883); Supreme Council z. Kacer, 96 Mo. Ap. 63, 69 S. W. 671,675 (1902) semble; Newell . Nichols, 75 N. Y. 78 (1878); Southwell v. Gray, 72 N. Y. Supp. 342, 346 (1901); Paden v. Briscoe, 81 Tex. 536, 569, 17 S. W. 42 (1891); Hildebrandt v. Ames, 27 Tex. Civ. Ap. 377, 66 S. W. 131 (1901); Males v. Woodmen, 70 S. W. 108 (Tex. Civ. Ap. 1902). The majority of these cases involved the construction of insurance contracts, not wills. But it is more difficult to give a liberal construction to a contract than to a will since two parties join in making it and it must appear that both used the words in the non-literal sense. These insurance contract cases will be considered as a class later. They are cited here merely on the question of construction.

cause they cannot sustain the burden cast upon them of showing that the party through whom they make title survived. There is no difference whether one party to the contest is the heirs or next of kin, claiming that all gifts have failed, or merely a later devisee or legatee, claiming that all gifts prior to his have failed. The same principle governs.

There are a few other cases, the facts of which differ from those in any of the groups already discussed, but which involve the same principle. Two joint-tenants die together. The representatives of each fail to prove survivorship. It seems that the jus accrescendi fails for lack of this proof and the heirs or next of kin of each succeeds to his interest. Husband and wife perish in the same disaster, the wife owning choses-inaction which the husband had not reduced to possession. His representatives must prove his survival to make out their claim of title and therefore, on failure to do so, the representatives of the wife are entitled. In Wollaston v. Berkeley the final cestui of a trust was the survivor of A and B. Survivorship could not be proven. A resulting trust for the settler was declared. An intention to dispose of the property fully could be gathered here just as in Y. W. C. Home v. French, but this fails of effect because the person who was to have the property if other dispositions failed cannot be determined. Durrant v. Friend' is an interesting

2 Mason 7. Mason, 1 Meriv. 308 (1816); Goods of Sel wyn, 3 Hagg. Ec. 748 (1832); Barnett z. Tugwell, 31 Beav. 232, 240 (1862); Y. W. C. Home 7. French, 187 U. S. 401, 23 Sup. Ct. 184 (1902) reversing Faul v. Hulick, 18 D. C. App. 9 (1901); Newell 7. Nichols, 75 N. Y. 78 (1878). In Elliott 7. Smith, 22 Ch. Div. 236 (1882) the substituted devisees failed because of the strict construction of a condition in the devise to them.

3 Bradshaw . Toulmin, 2 Dick. 633 (1784). Lord Thurlow said the heirs of each one would take as jointtenants with the heirs of the other. Possibly they should be considered tenants-in-common. 2 Blackstone, Com. 180.

* Scrutton z. Patillo, L. R. 19 Eq. 369 (1875). Moehring v. Mitchell, 1 Barb. Ch. 264 (N. Y. 1846) is contra. 5 L. R. 2 Ch. Div. 213 (1876).

Could the representatives of A and B have joined their interests and excluded the resulting trust? See p.

12 n. I.

75 De G. & S. 343 (1851).

case.

A testator insured certain personal property which he had bequeathed to A. The testator and the property were lost together. There was no evidence as to which survived. It was held that the proceeds of the insurance belonged to the estate and not to A. A's title to the property and so to the insurance money depended on its surviving the testator. This cast the burden of proof upon him and caused his failure. There are a few cases where the oath required of one applying for administration was changed to meet the difficulty of inability to establish the order of death.1 In a couple of cases the same principle was applied, although the failure to establish the order of death arose from the absence of one of the parties at the time of his death and the lack of information as to just when it occurred.2

One state of facts raises a problem which it seems neither the rule herein suggested nor any other known to the law will adequately solve. In re Rhodes presented this difficulty. An owner of property left home and was unheard of for seven years. Administration to his estate was granted, the presumption of death having arisen. The question was, who were his next of kin. At the beginning of the seven years a mother and two brothers were his nearest kindred. · Their representatives claimed the property.

Goods of Wainwright, 1 Sw. & Tr. 257 (1858); Goods of Ewart, 1 Sw. & Tr. 258 (1859); Goods of Grinstead, 21 L. T. n. s. 731 (1870); Goods of Johnson, 78 L. T. n. s. 85 (1897).

2 In re Phene's Trusts, L. R. 5 Ch. 139 (1809); Schaub v. Griffin, 36 At. 443 (Md. 1897).

In Wright . Netherwood, 2 Salk. 593 n. (a), 2 Phillim. 266 n. (c) (1793) the question involved was the application of the rule that the burden of proof of revocation of a will is on the contestant. Williams, Executors, 7th Am. Ed. I, 210, 214: Page, Wills, s.448. This rule supplanted the ordinary principle which we have seen applies generally. Kansas Co. v. Miller, 2 Colo. 442, 464 (Ter. 1874) was an action for wrongful death. The wife, who would be the one primarily entitled to sue, died in the same railway accident with her husband. The result of the case is perfectly consistent with the principle governing the burden of proof which the other cases establish. It seems unnecessary to work this out in detail

here.

3 L. R. 36 Ch. Div. 586 (1887).

At the end of the seven years the six children of one of the brothers were the next of kin, the mother and both brothers having died. The children also claimed the property. There was no evidence concerning the time during the seven years that the absentee died. The learned justice followed the more common rule that there is no presumption on that point. He admitted his inability to decide between the claimants and suggested a compromise. The representatives of the mother and brothers could not prove that these persons survived the absent owner. They therefore failed. But why did not the children succeed? They would take directly from the deceased and could prove their survivorship. The answer depends on when they were born, which did not appear. If they were born after the deceased was last heard of it seems that they would properly fail. They could not prove that they were in existence when he died. Surely this must be essential. But even if the children were born before the deceased left home, it is not certain that they would be held entitled. There was a period at the beginning of the seven years extending until the mother and brothers were all dead, during which the children were not next of kin. If the deceased died in that period they would have no rights. Possibly this would exclude them. At all events under the first supposi

to recover.

4 Even proof that the claimant was in existence during the entire seven years and so must have been alive at the time of the death of the absentee owner, coupled with the fact that he survived, would not, necessarily entitle him Under the supposition just discussed in the text, neither the mother and brothers nor the children could make out their title. Could a cousin who lived during the entire period of absence have a better claim? At no time during the seven years would he be next of kin.

5 When property is given to next of kin surviving a disaster as against nearer kindred who perished in it, the question is not the same. There, though it is highly probable that the kindred who died did not succumb at the first moment of the period of danger, yet it is possible that they did. It is therefore at least possible that the surviving kindred were the next of kin throughout the entire period during which the deceased may have passed away

tion, that they were born after the deceased was last heard of, we have a case where neither party can show title to the property under the law as it now stands. Some provision should be made to enable a court to decide such a case. A presumption that death occurred at the end of the first year of the seven, to be applicable only when without it the rights of the parties could be determined, would perhaps asonable as !

any and afford a soluti It would not be open to the objection urged in Nepean v. Knight against a presumption of death at the end of the seven years: namely, that "if you assume that he was ali on the last day but one of the sev ears, then there is nothing extraordinar in his not having been heard of on the last day" and thus the reason for the presumption of death would cease. Moreover, it would not be so obviously contrary to the fact as a presumption of death on the first day of the seven years

We have left for consideration the insurance contract cases. We may dispose first of those in which it appeared that the insured had reserved the right to change the beneficiary. In such a contract the beneficiary gets no interest until the death of the insured. This makes them perfectly analogous to cases arising concerning wills. Each claimant must prove his own chain of title but no more. The representatives of any beneficiary that perished in the same disaster with the insured will fail. They will be unable to prove the survival of the person through whom they claim. The first party who can establish his own chain of title succeeds.3

12 M. & W. 894 (1837).

2

3 Amer. & Eng. Ency. Law, 2nd. Ed. 990 ff.

3 Middeke. Balder, 198 Ill. 590, 601. 64 N. E. 1002 (1902); Supreme Council v. Kacer, 96 Mo. Ap. 03, 69 S. W. 671 (1902) semble; Southwell v. Gray, 72 N. Y. Supp. 342 (1901); Screwmen's Association 7. Whitridge, 95 Tex. 539, 68 S. W. 501 (1902); Males 7. Woodmen. 70 S. W. 108 (Tex. Civ. Ap. 1902). In all but one

1

But where no right to change the beneficiary is reserved the problem is complicated by the fact that either by statute or judicial decision it is almost universal law that the beneficiary gets a vested interest in the contract the moment it is made. This materially alters the situation. Suppose now that the insured and beneficiary have perished together. The beneficiary and not the insured was the owner. Those claiming under the beneficiary made out their chain of title by showing the death of the beneficiary and their own survivorship. The title need not be traced from the insured because it was not in the insured. Assuming this vested interest doctrine and the absence of any condition in the policy for divesting this interest, the representatives of the beneficiary are clearly entitled to the proceeds of the policy. Nor will the presence of a condition divesting the interest of the beneficiary if he pre-deceases the insured alter the result. The representatives need not establish the non-performance of this condition. On the contrary, any beneficiary substituted in the event of this divesti ture, or if none such, then the representatives of the insured, must prove the performance of the condition. It is essential to their chain of title to show that ownership has passed from the primary beneficiary to them. The representatives of the first beneficiary therefore succeed." But, it may be asked, why not construe this condition liberally, as in the will cases, so as to accomplish the general intention of the insured apparent from the whole policy? This, it is believed, is impossible. First, granting that there is of these a liberal construction was given to express conditions in accordance with the principle of Y. W. C. Home v. French, supra, though without much consideration of the difficult question of construction involved. See p. 242 n. I supra.

4 Amer. & Eng. Ency. Law, 2nd. Ed. 980 ff.

5 Whether by assignment, will, or descent.

6 Cowman v. Rogers, 73 Md. 403, 21 At. 64 (1891); U. S. C. Co. 7. Kacer, 169 Mo. 301, 12, 69 S. W. 370 (1902).

an intention apparent to dispose of the policy fully and not to have it revert to his estate, analogous to the intention against intestacy in the will cases, it is carried out. The proceeds do not go to the estate of the insured, but to the representatives of the first beneficiary. If under the law the representatives of the husband in Wing v. Angrave could have gotten the property, Wing's claim would have been greatly weakened. Intestacy would have been avoided without deciding for him. Secondly, how could the condition be construed so as to make it possible for a second beneficiary to prove its performance? "Non-survival" of the first beneficiary is no easier to establish than his or her "pre-decease." "Failure of the gift to the first beneficiary" cannot be shown. This discloses the difference between this sort of case and the will cases. There failure of the gift can be shown. It can be proven that the facts are such that the representatives of the first devisee cannot get the property because of inability to sustain the burden of proof resting on them. But no such burden of proof rests on the representatives of the primary beneficiary of an insurance policy. The representatives of

the beneficiary can take. There is no failure of the gift. Suppose the condition be construed "on failure of the first beneficiary to take personally the right to the proceeds shall pass to the second." This seems to go the full length of stating the insured's intention. Yet the second beneficiary cannot show that the first did, personally.

survive long enough to take

However, in Fuller v. Linzee' a subsequent claimant, the estate of the insured, succeeded. But this was because the court held that, although no right to change the beneficiary was reserved, yee first beneficiary got no vested interest. This of course is contrary to the general doctrine already stated. It, however, excites one's sympathies and seems to accomplish the aim of a husband in taking out a policy, payable to his wife and in case she died before him to his children, better than the other doctrine. If the policy creates no vested interest, the case is exactly the same as the will case, both as to burden of proof and the propriety and possibility of construing the condition liberally.5

course the same burden as to this condition as the cesand beneficiary.