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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![Britiiin for settling the actual question of aurvivoi'ship, many provisioiis liave been made wliicli immediately come into o])eration when that is determined. Thus, in ‘ Black.stone’s Commentaries,’* it is stated: “ If a man be seized in fee of lands and tenements, thoitgh hut for a moment, his wife is entitled to dower;'* therefore, if both hither and son perisli by a common accident, and the son survive—however short the period— his wife shall have dower, for the lauds descended the instant the father died. A curious illustration, cited by Paris,*' occurred in the case of Broughton v. Randall.* On this occasion father and son, being joint- tenants, were hung in the same cart. The son struggled the longest, ill consequence of which he became seized of an e.state in fee by snr- vivoi-shij), and his widow had a verdict granted for her dower accord- ingly. The same provision extends also to partners and others where the interest of the deceased lapses to the survivor. In such cases, the heirs of the survivor become entitled at his death. So also of testator and legatee. When the latter dies first, it is a lapsed legacy, and falls into the residue; when, however, the legatee survives, his executors claim.® According to the law of England, a man marrying a woman possessed of freehold property, if it be not specially settled by marriage ai'ticles, has no claim upon it after the death of his wife, unless he has a child by her capable of inheriting the estate,* born during the life of the mother, and which has survived for a longer or shorter period. If, however, a child be so born, the husband retains the property during his life as tenant by coui’tesy.® An example of the application of this law is to be found in the case of Fish V. Palmer, tried in the Court of Exchequer at Westmin.ster Hall in 1806, in which, although the child was nominally still-born, the jury, in virtue of some tremulous motion of the lips—a very pre- carious sign of life certainly—returned a verdict in favour of the 2 Bl. Com. 132. ® Vide Park on Dower. * Med. Jur., by J. A. Paris, M.D., &c., and J. S. Fonblanque, Esq., Barrister- at-law. London, 1823, p. 390. * Cro. Eliz., 502. ® In Noy, 64, it is stated the father moved his feet after the death of the son. ® Vide Mason v. Mason (.Merivale’s Chancery Eeports, vol. i. p. 308), and Taylor V. Deplock (Philip's Chancery Eeports, vol. ii. p. 281). ~ i.e., a male, if entailed. ® Tenant by the curtesie of England is where a man taketh a wife seized in fee simple or fee taile general, or seized as heir in taile especial, and hath issue by the same wife, male or female, born alive (oyes on vife), albeit the issue after dieth or liveth, yet if the wife dies the husband shall hold the land during his life by the law of England, and he is c.alled tenant by the curtesie of England, because this is used in no other realme but in England only (this law prevails also in Scotland and Ireland, Co. Litt. 30); and some have said that he shall not be tenant by the curtesie unless the childe which he hath by his wife be heard crie (Coke says if it be born alive it is sufficient, though it be not heard to cry, for peradventure it may be b-jm dumb), for by the crie it proved that the child was born alive. Har. Coke Litt., p. 29, chap. 4, sect. z5). Blackstone (vol. ii. p. 127) says that, although the crying of the infant is the atron/jesl evidence of its being born alive, it is not the vnl>j evidence; and Pitzherbert wiis of the same opinion. Vide case in Dyer’s Eeports, p. 25; and Paine’s in 8th Coke’s Eeport.s, p. 207. * Dr. Denman, Poderd, and others very properly object to twitching as a sign of vitality, it being in numerous instances a mere result of muscular contractility. As a case in point, see that of Mattia Bracci, in Ziicchias, Capuron, &c. It may, how- 69-xxxv. 12](https://iiif.wellcomecollection.org/image/b21955876_0009.jp2/full/800%2C/0/default.jpg)
