On appeal from the Essex County Circuit Court.
For the respondent, I. George Koven.
For the appellant, John Drewen (Randolph Perkins, of counsel, on the brief).
The opinion of the court was delivered by
KAYS, J. This is an appeal from a judgment entered in the Essex County Circuit Court.
The facts in the case are that The Prudential Insurance Company issued a policy of insurance on the life of one Hugo Boeddinghaus for the sum of $1,000. The beneficiary was his wife, Mathilda Boeddinghaus. The insured disappeared from his residence in West New York in the month of October, 1924. He had not been seen or heard from since his disappearance. Inquiry was made as to his whereabouts and he could not be found. Premiums on the policy in the meantime had been paid. Suit was brought
by the beneficiary on December 29th, 1932, which was more than seven years after his disappearance. It appears that the insured had forged a check for $100 and disappeared. After suit was brought Mathilda, the wife of the insured, died and the executor of her will became the plaintiff in the suit. Judge Robbins submitted the case to the jury and the jury rendered a verdict in favor of the plaintiff and against the defendant for the sum of $1,000, interest and costs. From the judgment entered thereon the defendant appeals here.
The first ground of appeal is that at the close of the whole case the judge erred in refusing to direct a verdict in favor of the defendant. In addition to the fact that the insured was a forger there was evidence that he was a hard drinker, that he was run down mentally and physically at the time he left his home and there was evidence that there was no one who had heard from him since he left. We think the trial judge properly ruled in this respect. The section of the statute relied upon by the plaintiff is as follows:
"That any person, whether a resident of this state or not, who shall remain beyond sea or absent himself or herself from this state, or from the place of his or her last known address, for seven years successively, shall be presumed to be dead, in any case wherein his or her death shall come in question, unless proof be made that he or she were alive within that time * * *." 2 Comp. Stat., p. 1904.
Chancellor Magie, in writing the opinion of Meyer v. Madreperla, 68 N.J.L. 258, said:
"By the construction given by our courts to the Death act * * * I apprehend that it has been properly determined that proof of the absence of a person, whose existence is in question, from the state or from his last known residence for a period of seven successive years defeats the presumption of continuance in life, and raises a counter-presumption of death. This counter-presumption of death is not a presumption of fact, but a presumption of law, which, in the absence of proof rebutting such presumption, stands as proof of ...