On the presumption of survivorship / by James Bell Pettigrew.

Date:
1865
Catalogue details

Licence: Public Domain Mark

Credit: On the presumption of survivorship / by James Bell Pettigrew. Source: Wellcome Collection.

Provider: This material has been provided by the Royal College of Physicians of Edinburgh. The original may be consulted at the Royal College of Physicians of Edinburgh.

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    “lY. If some were under fifteen aud others above sixty, the former shall be presumed the survivors. “ V. If those who had perished toother had eompleted the age of fifteen, and were under sixty, the male shall oe presumed the survivor where ages are equal, or where the difference docs not exceed one year. “ VI. If they w'ere of the same sex, that presumption shall be admitted which opens up the suceession in the order of nature; of course the younger shall be considered to have sui'vivcd the elder.”* In Section I. of the foregoing Code it will be observed that such cases as can be determined by collatei’al or circumstantial evidence, are left to turn upon their own merits ; while those which cannot be so determined are to be settled according to strength of age and of sex, the conditions of w'hich ai’e explained in Sections II., III., IV., V., and VI. Thus, in Sections II. and III., by a process of exclasion, provision is made for all those who perish under the age of fifteen and above sixty—a wise arrangement, when age becomes the concomitant of much tenderness, and includes alike the infant at the breast and the old man in his dotage. The fourth section—viz., that which adjudges the survivorship to those under fifteen, when they and per- sons above sixty perish together—is not so ha])py; for, as was justly jjointed out by Fodere,“ it makes no distinction between the endurance of infants of one, two, and three years, aud men of sixty-one, sixty- two, aud sixty-three, whose age and experience would certainly entitle them to live the longest. Section V., which regulates the chances of survivorship in the male and female between the ages of fifteen and sixty, appears to me likewise faidty; for it does not state which is to be adjudged survivor when the difference greatly exceeds one year—the probability being that a robust female of twenty or twenty-four would survive a delicate male of fifty-nine. On the whole, the Code Napoleon is a very admirable one; and the frequency with which it has been quoted by other nations in their decisions in questions of survivoi’ship, proves at once its importance and the high esteem in which it has all along been held. Paris® sug- gests that in dispo.sing of questions of survivorship, where no direct evidence is forthcoming, the order of uatiu’e should be followed; and “ that it should be presumed the child sui’vived the parent, the nephew the uncle, descendants ascendants, legatees testators, and generally that the younger had outlived the elder.” But that .something more definite is requisite will be evident from the following circumstance. If the order of nature were followed in all cases, then the sister or daughter of two years, might be regarded as surviving the brother of twenty, or the father of forty years, which is a manifest absurdity. Scarcity of Positive Lav: in Cases of Survivorship, jparticvla/rly in Britain. Although, as far as I am awai'e, there is no separate code of laws in ’ Code Napoleon, Titre 1 des Successions, chap. i. § 6, p. 270, &c. ® Fodere, vol. ii. pp. 223 to 226. * Med. Jur., by J. A. Paris, M.l)., &c. Loudon, 1823, p. 392.