Civil action. On final hearing.
This is one of the unfinished cases of the late Vice-Chancellor Woodruff which was assigned to me after the effective date of the Judicial Article of the 1947 Constitution. All of the issues in this controversy except those dependent upon the death of Louis H. Beneke, one of the beneficiaries named in the last will and testament of Cecilia R. Beneke, deceased, and the date thereof, have been disposed of by compromise and agreement among counsel, or otherwise.
By her will, testatrix made three provisions for her cousin Louis H. Beneke. These provisions comprised: (1) the appointment of $2,000 to him out of her father's residuary estate by sub-paragraph (i) of the third clause of her will; (2) the remainder interest in the appointed sum of $5,000 by sub-paragraph (y) of the same clause, subject to the life interest of her cousin, Carrie B. Lukens; (3) the remainder interest in her residuary estate by the fourth clause of her will, subject to a prior life estate in her cousin, Sarah Showaker.
Louis H. Beneke was a captain in the United States Army Air Forces during the late World War and was reported missing on September 29, 1944 while on a ferrying flight of a B-25 Mitchell bomber in the southwest Pacific. Pursuant to the provisions of the War Pay and Allowances Act of 1942, section 1001, et seq. , and particularly section 1005 of that act
(50 U.S.C.A., p. 463) the Adjutant General of the War Department fixed the presumed date of Captain Beneke's death as February 25, 1946. Our inquiry, therefore, is three-fold: (1) Is the finding of the Adjutant General with respect to the death of Captain Beneke, and the date thereof, binding upon this court? (2) If it is not, is Captain Beneke dead? (3) If his death is presumed from the circumstances disclosed by the evidence, when did he die? Upon the answer to these questions the rights of the several claimants to the legacies above mentioned depend.
The testatrix Cecilia R. Beneke died on November 13, 1945. If Captain Beneke died prior to that time, the legacies to him lapsed and testatrix died intestate as to that portion of her estate comprised in such legacies. 1 Roper on Legacies, chap. VIII, p. 462, et seq.; R.S. 3:5-6 and 3:2-18. If he survived the testatrix then his interest in her estate goes to his mother, as he was unmarried and without issue. R.S. 3:5-4.
It should first be noted that the purpose of those provisions of the War Pay and Allowances Act of 1942, authorizing a finding of death of a missing person and the date upon which such death shall be presumed to have occurred, is "for the purposes of termination of crediting pay and allowances, settlements of accounts, and payments of death gratuities," and such date must not be less than twelve months from the date of the commencement of the absence of such missing person (sec. 1005, supra); and the determination of the head of the department concerned as to death and the date thereof are only for the purposes of that act (sec. 1009, supra). It merely enables the government to determine when the pay or allotments of a missing person should be stopped and his name taken from the pay-roll.
Our statute, R.S. 2:101-1.1, provides as follows:
"Finding of presumed death under Federal statute as presumptive evidence
"A written finding of presumed death, made by the Secretary of War, the Secretary of the Navy, the United States Maritime War Emergency Board, or other officer or employee of the United States authorized to make such finding, pursuant to the Federal Missing
Persons Act, as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office or other place in this State as presumptive evidence of the death of the person therein found to be dead, and the date, circumstances and place of his disappearance."
While that act provides that the certificate of death authorized by the federal statute above referred to shall be received in our courts as presumptive evidence of the death of the person named therein, it does not provide that it shall be received as evidence, presumptive or otherwise, of the date of such death, but only of "the date, circumstances and place of his disappearance." This construction of that act is dispositive of the first and second portions of our three-fold inquiry. The finding of the Adjutant General is binding only as to the date of the disappearance of Captain Beneke, and as to the fact of his death; but not as to the date of his death. On the basis of that finding, we are, therefore, justified in assuming that Captain Beneke is dead. The only remaining question is when did he die?
The arguments of counsel touching this question are based mainly upon the familiar presumptions of life and death, it being argued on the one hand that there is no positive proof of Captain Beneke's death, and that, therefore, it must be presumed that he is still alive. Another contention is that there can be no presumption of his death until he has been absent and unheard of or from for the full period of seven years prescribed by the statute, R.S. 3:42-1. Still another contention is that Captain Beneke died on the day of his disappearance, September 29, 1944, or within a day or two thereafter, and the so-called "special peril" doctrine (16 Am. Jur. 32) is invoked in support thereof. And yet another argument is that the so-called "special peril" doctrine is not recognized by the courts of this state and that even if it were, it could not be invoked until after the lapse of the seven-year statutory period. Also, it is contended that, as Captain Beneke was a legal resident of and domiciled in Pennsylvania, when he disappeared, the law of that state touching the date of his death controls, and that under that law we must presume that his death occurred on the date fixed and certified to by the Adjutant General of the
War Department pursuant to the War Pay and Allowances Act of 1942, supra , which was February 25, 1946, approximately 18 months after the date of his disappearance. In support of this last contention, In re Millar's Estate , 356 Pa. 56, 51 A.2d 745, is cited. There are doubtless decisions of English or American courts supporting all of these arguments and contentions. Our problem here is to determine the rule of law in this state applicable to the circumstances here shown by the evidence in this cause.
Professor Greenleaf states the rule of presumptions of life and death as follows:
"Other presumptions are founded on the experienced continuance or permanency, of longer and shorter duration, in human affairs. When, therefore, the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question. Thus, where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party. This period was inserted, upon great deliberation, in the statute of bigamy, and the statute concerning leases for lives, and has since been adopted, from analogy in other cases. But where the presumption of life conflicts with that of innocence, the latter is generally allowed to prevail. Upon an issue of the life or death of a party, as we have seen in the like case of the presumed payment of a debt, the jury may find the fact of death from the lapse of a shorter period than seven years if other circumstances concur; as, if the party sailed on a voyage ...