LITMIR.BIZ

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to dispose of them effectually. I must remark upon a very singular point that has been raised by the learned counsel for the petitioner, which is this:

      "My learned friend points out that these remains were discovered near Eltham and near Woodford and that the testator was last seen alive at one of these two places. This he considers for some reason to be a highly significant fact. But I cannot agree with him. If the testator had been last seen alive at Woodford and the remains had been found at Woodford, or if he had disappeared from Eltham and the remains had been found at Eltham, that would have had some significance. But he can only have been last seen at one of the places, whereas the remains have been found at both places. Here again my learned friend seems to have proved too much."

      "But I need not occupy your time further. I repeat that, in order to justify us in presuming the death of the testator, clear and positive evidence would be necessary. That no such evidence has been brought forward. Accordingly, seeing that the testator may return at any time and is entitled to find his property intact, I shall ask you for a verdict that will secure to him this measure of ordinary justice."

      At the conclusion of Mr. Heath's speech the judge, as if awakening from a refreshing nap, opened his eyes; and uncommonly shrewd, intelligent eyes they were, when the expressive eyelids were duly tucked up out of the way. He commenced by reading over a part of the will and certain notes—which he appeared to have made in some miraculous fashion with his eyes shut—and then proceeded to review the evidence and the counsels' arguments for the instruction of the jury.

      "Before considering the evidence which you have heard, gentlemen," he said, "it will be well for me to say a few words to you on the general legal aspects of the case which is occupying our attention."

      "If a person goes abroad or disappears from his home and his ordinary places of resort and is absent for a long period of time, the presumption of death arises at the expiration of seven years from the date on which he was last heard of. That is to say, that the total disappearance of an individual for seven years constitutes presumptive evidence that the said individual is dead; and the presumption can be set aside only by the production of evidence that he was alive at some time within that period of seven years. But if, on the other hand, it is sought to presume the death of a person who has been absent for a shorter period than seven years, it is necessary to produce such evidence as shall make it highly probable that the said person is dead. Of course, presumption implies supposition as opposed to actual demonstration; but, nevertheless, the evidence in such a case must be of a kind that tends to create a very strong belief that death has occurred; and I need hardly say that the shorter the period of absence, the more convincing must be the evidence.

      "In the present case, the testator, John Bellingham, has been absent somewhat under two years. This is a relatively short period, and in itself gives rise to no presumption of death. Nevertheless, death has been presumed in a case where the period of absence was even shorter and the insurance recovered; but here the evidence supporting the belief in the occurrence of death was exceedingly weighty.

      "The testator in this case was a shipmaster, and his disappearance was accompanied by the disappearance of the ship and the entire ship's company in the course of a voyage from London to Marseilles. The loss of the ship and her crew was the only reasonable explanation of the disappearance, and, short of actual demonstration, the facts offered convincing evidence of the death of all persons on board. I mention this case as an illustration. You are not dealing with speculative probabilities. You are contemplating a very momentous proceeding, and you must be very sure of your ground. Consider what it is that you are asked to do.

      "The petitioner asks permission to presume the death of the testator in order that the testator's property may be distributed among the beneficiaries under the will. The granting of such permission involves us in the gravest responsibility. An ill-considered decision might be productive of a serious injustice to the testator, an injustice that could never be remedied. Hence it is incumbent upon you to weigh the evidence with the greatest care, to come to no decision without the profoundest consideration of all the facts.

      "The evidence that you have heard divides itself into two parts—that relating to the circumstances of the testator's disappearance, and that relating to certain human remains. In connection with the latter I can only express my surprise and regret that the application was not postponed until the completion of the coroner's inquest, and leave you to consider the evidence. You will bear in mind that Doctor Summers has stated explicitly that the remains cannot be identified as those of any particular individual, but that the testator and the unknown deceased had so many points of resemblance that they might possibly be one and the same person.

      "With reference to the circumstances of the disappearance, you have heard the evidence of Mr. Jellicoe to the effect that the testator has on no previous occasion gone abroad without informing him as to his proposed destination. But in considering what weight you are to give to this statement you will bear in mind that when the testator set out for Paris after his interview with Doctor Norbury he left Mr. Jellicoe without any information as to his specific destination, his address in Paris, or the precise date when he should return, and that Mr. Jellicoe was unable to tell us where the testator went or what was his business. Mr. Jellicoe was, in fact, for a time without any means of tracing the testator or ascertaining his whereabouts.

      "The evidence of the housemaid, Dobbs, and of Mr. Hurst is rather confusing. It appears that the testator came to the house, was shown into a certain room, and when looked for later was not to be found. A search of the premises showed that he was not in the house, whence it seems to follow that he must have left it; but since no one was informed of his intention to leave, and he had expressed the intention of staying to see Mr. Hurst, his conduct in thus going away surreptitiously must appear somewhat eccentric. The point that you have to consider, therefore, is whether a person who is capable of thus departing in a surreptitious and eccentric manner from a house, without giving notice to the servants, is capable also of departing in a surreptitious and eccentric manner from his usual places of resort without giving notice to his friends or thereafter informing them of his whereabouts.

      "The questions, then, gentlemen, that you have to ask yourselves before deciding on your verdict are two: first, Are the circumstances of the testator's disappearance and his continued absence incongruous with his habits and personal peculiarities as they are known to you? and second, Are there any facts which indicate in a positive manner that the testator is dead? Ask yourselves these questions, gentlemen, and the answers to them, furnished by the evidence that you have heard, will guide you to your decision."

      Having delivered himself of the above instructions, the judge applied himself to the perusal of the will with professional gusto, in which occupation he was presently disturbed by the announcement of the foreman of the jury that a verdict had been agreed upon.

      The judge sat up and glanced at the jury-box, and when the foreman proceeded to state that "We find no sufficient reason for presuming the testator, John Bellingham, to be dead," he nodded approvingly. Evidently that was his opinion, too, as he was careful to explain when he conveyed to Mr. Loram the refusal of the Court to grant the permission applied for.

      The decision was a great relief to me, and also, I think, to Miss Bellingham; but most of all to her father, who, with instinctive good manners, since he could not suppress a smile of triumph, rose hastily and stumped out of the Court, so that the discomfited Hurst should not see him. His daughter and I followed, and as we left the Court she remarked, with a smile:

      "So our pauperism is not, after all, made absolute. There is still a chance for us in the Chapter of Accidents—and perhaps even for poor old Uncle John."

      Circumstantial Evidence

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      The morning after the hearing saw me setting forth on my round in more than usually good spirits. The round itself was but a short one, for my list contained only a couple of "chronics," and this, perhaps, contributed to my cheerful outlook on life. But there were other reasons. The decision of the Court had come as an unexpected reprieve

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