But where time had once begun to run no subsequent disability on 3 & 4 Will. 4, the part of the person to whom the right first accrued, or of any one c. 27, s. 16. claiming under him, would stop the running of time (see Doe v. Jones, 4 T. R. 310; Sturt v. Mellish, 2 Atk. 610-614; Str. 556; 1 Wils. 134; Cotterell v. Dutton, 4 Taunt. 826; Doe v. Jesson, 6 East, 80; decided under Lim. Act, 1623, s. 2, the wording of which was very similar; and see Goodall v. Skerratt, 3 Drew. 216; Murray v. Watkin, 62 L. T. 796, post, p. 186). It was also decided under Lim. Act, 1623, s. 2, that where an estate descended to parceners, one of whom was under a disability, the disability of the one did not preserve the title of the other (Doe v. Rowlston, 2 Taunt. 441).

For the bearing of this section upon the construction of the first branch of sect. 3, see Owen v. De Beauvoir (16 M. & W. 567); De Beauvoir v. Owen (5 Exch. 166).

As to successive disabilities in different persons, see sect. 18, post, p. 155.

where person has not been

heard of for seven years;

(3) Where a person has not been heard of for many years, the presumption Presumption of the duration of life ceases at the end of seven years, a period which has of death been fixed from analogy to the statute of bigamy (1 Jac. 1, c. 11, s. 2; see now 24 & 25 Vict. c. 100, s. 57; Reg. v. Tolson, 23 Q. B. D. 168), and the statute concerning leases determinable on lives (19 Car. 2, c. 6). Compare the statutory rule in Scotland (44 & 45 Vict. c. 47). Thus, upon a plea of coverture, where the husband had gone abroad twelve years before, the defendant was called upon to prove that he was alive within the last seven years (Hopewell v. De Pinna, 2 Campb. 113). Where a tenant for life had not been heard of for fourteen years by a person residing on the estate, it was held to be presumptive evidence of his death (Doe v. Deakin, 4 B. & Ald. 433; see 2 Id. 386). It was held, that where no account could be given of a person within the exception of the Lim. Act, 1623, s. 2, he would be presumed to be dead at the expiration of seven years from the last account of him (Doe v. Jesson, 6 East, 84). It is now settled that if a person has not been heard of for seven years, there is a presumption of law that he is dead (Re Phene, 5 Ch. 139; Nepean v. Doe, 2 M. & W. 894; see Re Winstone, 1898, P. 143; Re Hurlston, Ib. 27). The presumption of death, however, does not arise where the other circumstances of the case render it probable that he would not be heard of though alive (Watson v. England, 14 Sim. 23; Bowden v. Henderson, 2 Sm. & G. 360; M Mahon v. M`Elroy, I. R. 5 Eq. 1). Further, in order to raise the presumption, there must have been an inquiry and search made for the man amongst those who if he were alive would be likely to hear of him (Prudential Co. v. Edmonds, 2 App. Cas. 509; Doe v. Andrew, 15 Q. B. 751; Re Creed, 1 Drew. 235). Sec, as to the presumption being made after a less period, Re Matthews, 1898, P. 17.

But although, if a person has not been heard of for seven years, there no presumpis a presumption of law that he is dead; at what time within that period tion as to

he died is not a matter of presumption but of evidence. And the onus of time of death; proving that the person survived any particular period within the seven years lies upon those who claim a right, to the establishment of which that fact is essential (Re Phene, 5 Ch. 139, where the cases are collected; see Nepean v. Doe, 2 M. & W. 894; Doe v. Nepean, 5 B. & Ad. 86; R. v. Harbourne, 2 Ad. & Ell. 540; R. v. Twyning, 2 B. & Ald. 386). Where, accordingly, a legatee has not been heard of for seven years, his death will be presumed, and the onus of proving that he survived the testator lies upon those who claim under him. In the absence of such proof the legacy will be paid to the residuary legatee, or the next of kin of the testator (Re Lewes, 6 Ch. 356; Re Walker, 7 Ch. 120). See form of order in Re Benjamin, Neville v. Benjamin, 1902, 1 Ch. 726. See also Re Green, 1 Eq. 288, a case of next of kin; and Rhodes v. Rhodes, 36 Ch. D. 586, where the court remained in doubt whether a fund should be paid to the next of kin ascertained at the beginning or the next of kin ascertained at the end of the period.

3 & 4 Will. 4, c. 27, s. 16.

effect of circumstances;

security to refund;

practice in Probate Court;

commo

rientes;

After seven years, having got the fact of death, you have a right to look back and inquire into all the circumstances and ascertain when the man died (Hickman v. Upsall, 4 Ch. Div. 149; Re Basney, 7 Eq. 498; and see the judgment of Lush, J., in R. v. Lumley, L. R. 1 C. C. 196; R. v. Willshire, 6 Q. B. D. 366).

In Sillick v. Booth (1 Y. & Coll. C. C. 117), the court concluded that a party died at a particular time within the seven years after he had been last heard of, the particular time being the hurricane months, and the party having sailed from Demerara before the expiration of such hurricane months (see also Webster v. Birchmore, 13 Ves. 362). The court concluded that a young sailor, who was last seen in the summer of 1840 going to Portsmouth to embark, survived his grandmother, who died in March, 1841 (Re Tindall, 30 Beav. 151). A son, first tenant in tail in remainder, left this country on the 11th April, 1858, and was never afterwards heard of. His father, tenant for life, died on the 30th May, 1858. The court concluded, in 1872, that the son survived the father (Pennefather v. Pennefather, I. R. 6 Eq. 171; see Lakin v. Lakin, 34 Beav. 443). Where a testator died in 1829, leaving a will in favour of his children, one of whom went abroad in 1809, and had not been heard of since 1815; both before and after the testator's death unsuccessful attempts to procure information were made, by inquiries and advertisements. He was presumed to have died before the date of the will (Rust v. Baker, 8 Sim. 443). The certificate of a master, stating that a legatee had been abroad twentyeight years, and not been heard of for twenty-seven years, and his opinion that he died in the lifetime of the testator, was the foundation of a decree (Lee v. Willock, 6 Ves. 606; Reg. lib. 1791, fol. 315; see also 13 Ves. 362). Where a trust was declared by deed in favour of A., A., although he had not been heard of for five years before the date of the deed, was presumed to have been then in existence (Re Corbishley, 14 Ch. D. 846). In some doubtful cases the court has handed over property on security to refund being given (Dowling v. Winfield, 14 Sim. 277; Cuthbert v. Purrier, 2 Phil. 199; Re Mileham, 15 Beav. 507).

Before granting probate or administration, the Probate Division requires evidence of the date of the death. And where no direct proof is forthcoming, the practice is to lay the available evidence before the court on motion, and take its directions. In such cases the rule as to seven years' absence is applied (Re Howe, 1 Sw. & Tr. 54; 27 L. J. Prob. 37); but as a rule advertisements are directed (Re Robertson, 1896, P. 8; see Re Saul, 1896, P. 151). As to the grounds on which the Probate Court will presume the death of parties who embarked in vessels lost at sea or not afterwards heard of, see Re Norris (1 Sw. & T. 6); Re Main (1 Sw. & T. 11); Re Smyth (28 L. J. Prob. 1).

The testator and his wife were shipwrecked and drowned at sea, one wave sweeping both of them together into the water, after which they were never seen again. In such cases the question of survivorship is matter of evidence, and not of positive regulation and enactment (varying according to the ages and sex of the persons dying in the same shipwreck), as it is in the French Code, and in the absence of evidence there is no conclusion of law on the subject (Wing v. Angrave, 8 H. L. C. 183; see, further, Gen. Stanwix's case, Fearne's Post. Works, 38; R. v. D. Hay, 1 Wm. Bl. 640; Swinburn, part 7, s. 33; Wright v. Netherwood, 2 Salk. 593, n.; Hitchcock v. Beardsley, West's Rep. t. Hardwicke, 445; Bradshaw v. Toulmin, 2 Dick. 633; Mason v. Mason, 1 Mer. 308; Taylor v. Diplock, 2 Phill. Ecc. C. 261; Re Selwyn, 3 Hagg. Ecc. R. 741; Colvin v. The King's Proctor, 1 Hagg. Ecc. 92; Re Alston, 1892, P.142; Re Beynon, 1901, P. 141).

As to reduction into possession in cases of this kind, see Scrutton v. Pattillo (23 W. R. 379); Wollaston v. Berkeley (2 Ch. D. 213).

In establishing a title upon a pedigree, it is sufficient to show that the person has not been heard of for many years, to put the opposite party upon proof that he still exists (Rowe v. Hasland, 1 W. Bl. 404; see Fitz. N. B. 196, A. L.).

out issue.

Where a man died long ago and there is nothing to show whether he 3 & 4 Will. 4, died with issue or without issue, there is no presumption either way c. 27, s. 16. (Greaves v. Greenwood, 2 Exch. Div. 295). Proof by one of a family, that many years before a younger brother of the person last seised had gone presumption abroad, and that the repute of the family was that he had died there, and of death withthat the witness had never heard in the family of his having been married, is prima facie evidence of his death without issue to entitle the next claimant by descent to recover in ejectment (Doe v. Griffin, 15 East, 293). The court concluded that a man had died without issue (Rawlinson v. Miller, 1 Ch. D. 52; see Re Pople, 40 Ch. D. 589; Re Hanby, 25 W. R. 427); and without leaving a widow (Re Westbrook, 1873, W. N. 167; see Re Benjamin, Neville v. Benjamin, 1902, 1 Ch. 726).

accrued.

17. Provided nevertheless, and be it further enacted, that no But no action, entry, distress or action shall be made or brought by any person &c. shall be brought who, at the time at which his right to make an entry or disbeyond forty tress, or to bring an action to recover any land or rent shall years after the have first accrued, shall be under any of the disabilities herein- right of action before mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such forty years, or although the term of ten years, from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired.

In all cases since 1st January, 1879, reference must be had to R. P. 37 & 38 Vict. Lim. Act, 1874, s. 5 (given at length post, p. 187), which has prescribed c. 57. thirty years as the utmost allowance for disabilities.

Before R. P. Lim. Act, 1833, the period during which a vendor of land Vendor and on an open contract was bound to show title was sixty years, and sect. 17 purchaser. of the act did not alter this rule (Cooper v. Emery, 1 Ph. 388; Moulton v. Edmonds, 1 D. F. & J. 250). Now by V. & P. Act, 1874, s. 1, the period is forty years. And this is the period required where the title is a possessory one (Jacobs v. Revell, 1900, 2 Ch. 858).

wife's

pro

convey wife's

A feme sole seised in fee married, and she and her husband ceased to be Where in the enjoyment of the land. The wife's heir-at-law brought ejectment husband and more than forty years after the husband and wife ceased to occupy: it wife abandon was held, that the heir-at-law was barred by the 17th section (Doe v. Possession of Bramston, 3 Ad. & Ell. 63). But where the husband and wife are scised in fee in right of the wife, and the husband, by a conveyance which does perty. not bind the wife, purports to convey the fee, and thereby passes the Where estate which the husband might have held during the continuance of the husband coverture in such case the right of the wife comes within the fourth purports to description of interest in the 3rd section, and the wife or her heir may, property by a on the husband's death, recover the land, notwithstanding the purchaser conveyance may have been in possession for more than forty years (Jumpsen v. Pitchers, which does 13 Šim. 327; see Hounsell v. Dunning, 1902, 1 Ch. 512, quoted post, p. 187). not bind her. In 1787, a lease was made by a lunatic to his brother for lives renewable Lease by a The lessee was permitted to hold part of the lands demised, lunatic. paying the entire reserved rent, and died in 1836, being the last life in the lease. It was held, that he had not acquired either the fee-simple, subject to a perpetual rent equal to the rent reserved, or a right to a renewal (Fulton v. Creagh, 3 J. & Lat. 329).

for ever.

allowed for a

18. Provided always, and be it further enacted, that when No further any person shall be under any of the disabilities herein before time to be mentioned at the time at which his right to make an entry or succession of distress or to bring an action to recover any land or rent shall disabilities.

3 & 4 Will. 4, c. 27, s. 18.

37 & 38 Vict. c. 57.

Sect. 18.

Scotland,

have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person.

In cases since 1st January, 1879, this section is to be read substituting the periods of twelve years and six years respectively for the periods of twenty years and ten years mentioned in the section (R. P. Lim. Act, 1874, s. 9, post, p. 189).

As to how far sect. 18 was retrospective, see Devine v. Holloway, 14 Moore, P. C. C. 290. As to successive disabilities in the same person, see note to sect. 16, ante, p. 152.

19. No part of the United Kingdom of Great Britain and Ireland, and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney the adjacent or Sark, nor any islands adjacent to any of them (being part of the dominions of his Majesty), shall be deemed to be beyond seas within the meaning of this act.

islands not to be deemed beyond seas.

When the right to an estate in possession is barred, the right of the

same person to future estates shall also be barred.

Cases on the construction of this section.

See sect. 16, ante, p. 152, and Mercantile Law Amdt. Act, 1856, s. 12, post, p. 245; Ex p. Hassell, 3 Y. & Coll. 617; Battersby v. Kirk, 2 Bing. N. C. 603; Lane v. Bennett, 1 M. & W. 70; Ruckmaboye v. Mottichund, 8 Moore, P. C. C. 4. No time is now allowed for absence beyond seas (R. P. Lim. Act, 1874, s. 4, post, p. 187).

4. Concurrent Rights.

20. When the right of any person to make an entry or distress, or bring an action to recover any land or rent to which he may have been entitled for an estate or interest in possession, shall have been barred by the determination of the period herein before limited, which shall be applicable in such case, and such person shall, at any time during the said period, have been entitled to any other estate, interest, right or possibility, in reversion, remainder or otherwise, in or to the same land or rent, no entry, distress or action shall be made or brought by such person, or any person claiming through him, to recover such land or rent, in respect of such other estate, interest, right or possibility, unless in the meantime such land or rent shall have been recovered by some person entitled to an estate, interest or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession.

This section, so far as applicable to future estates and interests, must be read in connection with the fourth branch of sect. 3 (ante, p. 130) and sect. 2 of R. P. Lim. Act, 1874 (post, p. 184).

This section is in derogation of the old maxim, borrowed from the civil law, "quando duo jura concurrunt in unâ personâ equum est ac si essent in

diversis" (4 Rep. 118; 7 Rep. 2 b, 14 b; Plowd. 368). Under the Lim. 3 & 4 Will. 4, Act, 1623, s. 1, a party might have pursued his right of entry twenty c. 27, s. 20. years after it attached, although in the meantime the party might have had a different right, of which he was barred by more than twenty years' adverse enjoyment (Hunt v. Bourne, 1 Salk. 339; 2 Id. 421; 4 Br. P. C. 66).

Copyhold land was surrendered, in 1798, to a husband and wife, with remainder to the heirs of the husband. In 1805, the husband absconded. In 1807, a commission of bankruptcy issued against him, and the usual assignment of his estate was made to his assignee. The wife occupied the copyhold estate until her death in 1841: it was held, that an ejectment by the assignee brought within twenty years after her death was in time; for that the husband's reversion in fee was a future estate within the meaning of R. P. Lim. Act, 1833, s. 3. The court thought it clear that the husband, if he had not been bankrupt, would have been entitled to the possession during the joint lives of himself and wife, and that upon his death (which the court presumed to have taken place in 1812) the wife was entitled to possession for her life, and the heirs of the husband on the expiration of their joint lives. The court thought, supposing the twentieth section to apply, the proviso at the end of it applied also, because the wife had been in possession until her death; and this was a sufficient recovery for the purpose of that section (Doe v. Liversedge, 11 M. & W. 517). Where A. was entitled to a leasehold interest in land for lives as heir of B., and to the reversion fee as heir of C., adverse possession during the lease barred his original right of entry, and he had no new right of entry on the determination of the lease (Doe v. Moulsdale, 16 M. & W. 689). A testator devised lands to A., with a gift over to B. in case either of two events should happen. Both events having happened, it was held that sect. 20 deprived the plaintiff of the benefit of the new right of action which accrued on the happening of the second event (Clarke v. Clarke, I. R. 2 C. L. 395).

A general power vested in a tenant for life of appointing the fee in remainder was held not to fall within the words "other estate, interest, right, or possibility"; so that a barring of the life estate did not affect the claim of the appointee (Re Devon Settled Estates, 1896, 2 Ch. 562).

The above section deals with the case of the same person being entitled to successive interests in real estate. Where a person was entitled to successive life interests in personal estate, and she sued for a breach of trust as regards the corpus of the estate, it was held, under sect. 8 of the Trustee Act, 1888 (post, p. 248), that she could, in respect of her second interest, maintain the action, although an action in respect of the first would have been barred (Mara v. Brown, 1895, 2 Ch. 69, 96).

barred, re

5. Operation of the Statute in Cases of Estates Tail. 21. When the right of a tenant in tail of any land or rent to Where tenant make an entry or distress, or to bring an action to recover the in tail is same, shall have been barred by reason of the same not having mainderman been made or brought within the period herein before limited, whom he which shall be applicable in such case, no such entry, distress might have or action shall be made or brought by any person claiming any not recover. estate, interest or right, which such tenant in tail might lawfully have barred.

barred shall

Land was devised to the father of the plaintiff in tail general. The Cases under plaintiff's father received the rents and profits from 1799 to 1807, at this section. which time he was succeeded by a person through whom the defendant claimed. Held, in an action of ejectment brought in 1853, that under