M'Comb v. Wright

Headnote

Ignorance in a family of the existence of one of the children, who had gone abroad, at the age of twenty-two, unmarried, and had not been heard of for upwards of forty years, is sufficient, with other circumstances, to warrant the Court or a jury to presume the fact of his death without issue.

THIS cause came to a hearing on exceptions to the master’s report, which was in favour of the competency of the plaintiff to give a good title, and such as a purchaser might safely take.

The report stated, that Alexander Ogilvie was seized in fee, of the lot in question, and by his- will, dated 21st of •January, 1748, he gave all his estate, real and personal, to his wife for life, and then to his children, Alexander, Thomas, Jane, John and Catharine, as joint heirs. He died seized, prior to the year 1770. His wife took the rents and profits, and died in 177f. On the 14th of March, 1786, Alexander and Jane, two of the children, by a warranty deed, conveyed the lot to Thomas, for a valuable consideration, and that deezd recited the death of Catharine in 1754, without husband or issue. Thomas pulled down the old house, and built a new one, and continued in peaceable possession thereof, and in the receipt of the rents' and profits, until his death, in March, 1815, and his executor, who was .authorized by his will to sell, held the same, until the sale by him to the defendant, in January, 1819. The master reported the death of Catharine, as recited in the deed; and that John went to England a short time before the Revolutionary war, at the age of twenty-two, unmarried; and had not been heard of since the commencement of that war. He had threatened to drown himself, and it was believed among his acquaintance in London, that he had drowned himself in the Thames. Sarah Hunt, a witness, aged 62 years, and intimate with the Ogilvie family, testified that her first acquaintance with the family commenced when she was about ten years old, and continued until she married, after the revolutionary war. That she was frequently an inmate of the family, and never heard of a daughter named Catharine, which from her intimate acquaintance with the family, and particularly with the mother, she must have done, had Catharine been living, and she had, therefore, no doubt, that Catharine died in early infancy, and before her acquaintance with the family.

The exceptions to the report were,

1. That there was not sufficient proof that Catharine was

not dead, or if dead, that she died unmarried, and without issue.

2. That the evidence as to the death of John was vague, and afforded no foundation for that presumption.