No. 4650--July 24, 1878.


EVIDENCE.--DEATH, PRESUMPTION OF, ON DISTRIBUTIONS.—In case of heirs who have not been heard from for a long time and who

appear to have migrated from last known residence, the Court cannot base any presumption upon enquiries made only at such

abandoned place of residence.  Further search should be made to trace the missing parties before any action by the Court can be had

in the premises looking to distribution.


Construing section, C. C. P., 1963.




M. Mullany, for claimants.


J. H. Smyth, for executors.


F. J. French, for absentees.


The deceased left a brother and sister surviving him, who now ask that the entire estate be distributed to them.  They have each had one-third heretofore distributed, and now ask the residue.  Deceased had another sister, who married one Leeds and died leaving two children.  The Leeds children lived at Boson, Mass., until about 1871, when they and their father went west, supposed to Chicago.  Their subsequent movements are obscure, and it is not yet definitely known whether they are living or dead--but correspondence is now being had from which it is thought that one sister is living at St. Louis, Mo., and one with the father in Illinois; at all events, the Court cannot, from the evidence now before it, presume the Leeds children to be dead.  It is known that they left Boston, and therefore inquiries as to whether they had been heard from as living there would be futile.  The inquiry, from which the Court may be asked to presume them to be dead, must be made at their last place of residence, which, in this case, was not Boston.

The application for distribution is denied for the present, and the matter is postponed to Sept. 23d next, for the purpose of obtaining further proofs.*





* Before the adjourned day, one of the Leeds children was discovered at Cheyenne, and brought here, and her identity proved and recognized, and she received one-half of the residue, the other half been retained to be claimed by her sister, if alive.  The petition of the brother and sister of the testator for any further share of the estate was denied.






Transcribed by Pat Seabolt.

© 2007 Pat Seabolt.