240
77/6' Green Bag.
other words, that he did survive." All .the Wing. Husband and wife died in the same authorities accord with this conclusion.1 shipwreck. In default of appointment, the father's will gave the property to certain The next group of cases is composed of persons represented by Augrave. It was contests between parties representing de held that these persons were entitled to the visees or legatees under a will on the one property as against Wing, because he could side and heirs or next of kin on the other. not show performance of the condition on The testator and a devisee having died in which his title depended, nameiy, the death the same disaster, the question whether the of the husband in the wife's lifetime.1 Dis heirs of the testator or those of the devisee now have title plainly turns on which of the regarding the condition for a njoment, how decedents survived. The burden of proof is would the case be decided? Wing was an determined by exactly the same principle as appointee under the power, and the prior ap that governing the last case. The heirs of pointments had failed. The other party was the testator take their tifie directly from him. entitled in default of appointment. The poHe is the person who had title at the time /4ition is the same as if Wing were the last of the disaster. Their chain of title, there- v / substituted devisee under a will and his op fore, is made out by showing his death and ponents the heirs of the testator. As be their own survivorship. The heirs of the tween such parties, the devisee would of devisee, however, to make out their chain course, succeed. Both take directly from bf title, require the survivorship of the de 'the 1 testator. Neither has to prove survlvisee. On them, therefore, rests the burden ' vorship« of anyone except himself. Neither of proof.2 need' show non-survival of prior devisees as that is no part of cither's chain of title. Each But a more complex problem was pre sented in Wing v. Augrave.3 It is the lead 'makes out his own title; but a devisee un ing case in another group which may now der a valid devise^of course has precedence be considered. A wife, under a power given over the heirs at law. So in the absence of the express condition Wing would have had her by her father's will, appointed the prop the better case. Subsequent devisees, all erty to her husband, "and in case my said husband shall die in my lifetime" to William 1 Satterthwaite т. Powell, I Curt. EC. 705 (1838): Goods of Wheel«, 31 L. J. '(P. M. & A.) 40 (1861)-. Smith j'. Croom, 7 Fla. 81, 141 (1857) semble; In re Hall, 9 Cent. Law. Jour. 381 (Ill. Prob. 1879); Russell v. Hallett, 23 Kan. 276 (1880); Jtohnson v. Merithew, 80 Me. in, 116, 13 At. 132 (1888); Coye т. Leach, 8 Met. 371, 375 (Mass. 1844); Stinde г Goodrich, 3 Red. Sur. 87, 89 (N. Y. 1877); Ehle's Will, 73 Wis. 445, 41 N. W. 627 (1889). So far as Col vin г-. Procurator-Gener al, i Hagg. EC. 92 (1827) is authority for anything it is also in accord. 'Taylor v. Diplock, 2 Phillim. 261,280 (1815): Goods of Murray, i Curt. EC. 596 (1837); Goods of Carmichael, 32 L. J. (P. M. & A.) 70 (1863); In re Lewes' Trusts, L. R. 6 Ch. 356 (1871); Goods of Alston, [1892] P. 142; Robinson?'. Gallier, Fed. Cas. 11,951 (Cir. Ct. for La. 1875); Matter of Ridgeway, 4 Red. Sur. 226 (N. Y. 1880); In re Willbor, 20 R. 1. 126,37 At. 634 (1897); Pell z-. Ball, Chev. Eq. 99, 108 (S. C. 1840) semble. Faul r. Hulick, 18 D. C. App. 9, 28 (1901) is contra but was reversed on appeal, Y. W. С. Home r. French, 187 U. S. 401, 23 Sup. Ct. 184 (1902).
38 H. L. Cas. 183 (1860).
4 An interesting feature of this case was that by the AusbanU's will Vingwasgiven thé husband's estate if the wife died first. So whether husband or wife sur vived, Wing was entitled to all the property of both, subject, in case the husband survived, to the payment of his debts. The court thought that Wing could not join these alternate claims. A criticism of this position is found in 12 ffai-'cin/ Law Rerirw 45. One readily agrees with the learned writer's view that several per sons who among them have title under all possible contingencies, though no one can prove that the contin gency on which he would have title occurred, should be permitted to pool their interests and so recover. In re Rhodes, L. R. 36 Ch. Div. 586 (1887) seems to counten ance such a proceeding. Newell i: Nicholls, 75 N. Y. 78, semble contra, simply follows Wing v. Augrave. But the writer of the article fails to notice that in "Wing т. Augrave there were three possible states of fact : sur vivorship of the wife, survivorship of the husband, sim ultaneous death. In the last event Wing would have no rights at all. Neither the condition in the wife's will nor that in the husband's would be performed. The joining of his two claims would not therefore, have helped Wing. The same consideration made joinder useless in Newell :•. Nicholls, supra.
