berty perished by the same accident, the younger was
presumed to have been the survivor; but if one was _under_ the age of
puberty, the other was presumed to have been the survivor.--(Dig. lib.
34, tit. 5, Sec.Sec. 9, 22, 23.) It is very curious to see how this question
is dealt with in modern times. The _Code Civile_ (in France) adjusts the
presumption to specific periods of life. If those who perished were all
under 15 years of age, the eldest is presumed to have survived; if all
above 60 years, the youngest. If some under 15, and others above 60, the
former shall be presumed to have survived. If all were between 15 and 60
years of age, the male, (when the ages are equal, or within a year of
being so) shall be presumed the survivor. If of the same sex, that
presumption shall be admitted which opens the succession in the order of
nature--of course the younger being presumed to have survived the
elder.--(_Code Civ_. Sec.Sec. 720-722.) It has been objected, that, though
these rules are generally equitable, they are imperfect: for a man above
sixty ought surely to be held to have survived a mere infant; and no
provision is made for the case of persons under 15, and under 60 years
of age perishing together. By the _Mohammedan law of India_, "when
relations perish together, it is to be presumed that they all died at
the same moment, and the heir of each immediately succeeds." The
difficulty of the case arises, of course, from the circumstance of there
being no evidence whatever as to the _actual fact_ of survivorship. Our
English law has not adopted any definite rule on the subject, but leans
in favor of the survivorship of the party possessed of the property in
dispute; and _some_ regard seems to be had to the probability of the
survivorship of the stronger party. Several very interesting cases of
this kind have arisen in this country; and, generally speaking, our
courts appear to have required some evidence of the _fact_. A singular
case occurred in Queen Elizabeth's time, (1596.) Father and son were
hanged at the same time, in one cart; being joint tenants of property,
which, on their death, was to go to the _son's_ heirs. According to one
report (Noy) the _father's_ feet were seen moving after the son's
death; but other witnesses swore to the son's "shaking his legs" after
his father's death. This the jury believed; found that the son survived;
and his widow was therefore held entitled to her dower!--(_Broughton_ v.
_Rand