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In re Buckham's Will

5 N.Y.S. 565 Court N.Y. Sur. Ct. Decision date 1889-03-23 English

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p. 565
In re Buckham’s Will.
(Surrogate’s Court, Kings County.
March 23, 1889.)

Headnote

Death—Presumption prom Disappearance.
Testatrix, who was 67 years old, and infirm in mind and body, disappeared from her house near the North river, on a stormy night. Every effort was made for several months to ascertain if she was living, but nothing could be learned. According to the medical testimony she could not, in all probability, have" survived under the most favorable circumstances the period that had elapsed since her disappearance. Held, that her death would be presumed.
Application for the admission to probate of the will of Catharine J. Buck-ham, alleged to be deceased.
Charles H. Machín, for proponent.

This case is a peculiar one from the fact that the proof of death is entirely circumstantial. The affidavits presented allege that the testatrix disappeared from her home in the night-time, in May last, and nothing has since been heard of her, and no trace whatever has been found of her. She was 67 years of age, in very feeble health; her mind was affected; and,

p. 566
according to the medical testimony, she could not, in all probability, have lived until this time under the most favorable circumstances. Every measure possible was taken to ascertain if Mrs. Buckham was living, and the ease was widely advertised in the press. The testimony also showed that it was only a short distance from the house of the testatrix to the North river, and that she went out in the darkness of a stormy night, under circumstances that led to the conclusion that she must have been drowned. Mr. O. H. Ma-chin, attorney for the proponent, cited, with other authorities, the Case of Stewart, who was supposed to have been lost at sea in the blizzard of last March, and whose will was admitted to probate by Surrogate Ransom in November, (reported in 3 N. Y. Supp. 284 ,) and claimed that the presumption of death in the case of Mrs. Buckham was stronger than in that case. After careful consideration I have decided to admit the will to probate.