Whiting v. Nicholl

Citations

• 46 Ill. 230

Syllabus

<p>1. Presumption—of death after seven years absence. Where a person goes abroad, and has not been heard of ’ for a long time, the presumption of the continuance of life ceases at the expiration of seven years from the period when he was last heard of.</p> <p>2. The same rule holds generally with respect to persons away from their usual places of resort, and of whom no account can be given.</p> <p>3. Our courts have adopted the rule, that a person is presumed to Be dead who has not been heard of for seven years, leaving it incumbent on the party who claims a benefit or interest in his being alive within that period, to prove it. At what particular time a party died, is of no importance to a person claiming a right which becomes established on a death, but it may be important to one resisting that right, and so it becomes an affirmative fact, which the party alleging must prove.</p> <p>4. A less period than seven years’ absence will not suffice to raise the presumption of death.</p> <p>6. A party whose interest it is to show that a person was living within the seven years, is at liberty to show it by such facts and circumstances as will inspire that belief in the minds of a jury.</p> <p>6. Where a person had not been heard of from the 21st of March, 1852, to the 21st of March, 1859, it was held, that the presumption of law is, that he was dead on the 21st .of March, 1859, being seven years from the time he was last heard of.</p> <p>7. Dower—when the right to sue far accrues. Where a husband’s death is claimed by reason of his absence for seven years without being heard of, the right of the wife to sue for dower, does not exist until the expiration of that period.</p> <p>8. Same—necessary proof to maintain an action. To entitle a wife to recover dower, she must prove seizin in the husband, marriage and the death of the husband.</p> <p>9. Same—limitations. An action to recover dower is embraced within the provisions of the first section of the limitation act of. 1839,