As the probable duration of human life, under ordinary circumstances, forms the foundation of the system of life insurance, so also does the comparative chance of duration between two or more lives. These contingencies have been made the subject of minute, and we believe accurate calculation.^[587] One observation alone is necessary on this branch of the subject: the tables have been constructed on the basis of local mortalities, they must not therefore be considered as universally applicable to all changes of climate and circumstance.^[588]

A more difficult problem however is presented when it is required to estimate the probable chance that one life had survived another, there being no evidence of the decease of either, though a moral presumption exists of the loss of both. The legal application of this question may arise from a variety of circumstances, as where two or more persons perishing by the same accident, as shipwreck, it is necessary to ascertain the survivor in order to determine the course of succession. This was the case of the representatives of Gen. Stanwix, A. D. 1772, (Fearne’s Posthu. Works, p. 37) “a case which,” according to the learned author, “seemed to mock every principle of judicial decision.” Gen. Stanwix, accompanied by his only child, a daughter by his first marriage, and by his second wife, set sail for Ireland; the vessel was lost and not a single person escaped. If Gen. Stanwix had died a widower, and without issue living at the time of his death, that is to say, if his wife and daughter died before him, though but an instant, his nephew became his representative, and entitled to his personal estate; if the daughter was the survivor, then her personal representative (an uncle) was entitled; and on these claims the principal litigation took place, for though it is evident that the second wife also might have a separate next of kin, and her representative did bring forward a distinct claim, the circumstance is not noticed by Fearne (see note l. c. p. 39) “The court, finding the arguments on all sides equally solid and ingenious, waved giving any decision, and advised a compromise, to which the several claimants agreed.” So also in the case of Col. James and his wife, who being passengers in the Grosvenor East Indiaman, were in 1782 cast away on the coast of Africa, and attempted with a great part of the crew and other passengers to make their way to some settlement, but in all human probability perished. In this case there was greater latitude for conjecture than in the preceding, as there was not the same presumption that the fate of both had been nearly cotemporaneous; one might have survived a very considerable time, or both may have been living at the moment of the suit; there was also some evidence of their comparative state when last seen, as three or four sailors, who parted from the main body and took a different route, ultimately escaped and arrived in England to relate the melancholy tale of their shipwreck and sufferings. In this case, one of the parties being an infant, it was ordered that it be referred to the master to enquire and report whether it would be for the benefit of the infant to consent to a compromise; and the master having reported in the affirmative, no final judgment was given.

If a man be seized in fee of land and tenements, though but for a moment, his wife is entitled to dower^[589]; therefore if both father and son perish by a common accident, and the son survive, however short the period, his wife shall have dower, for the lands descended the instant the father died. (2 Bl. Com. 132.) “This doctrine was extended very far by a jury in Wales,^[590] where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seized of an estate in fee by survivorship,” (he and his father being joint-tenants) “in consequence of which seizing his widow had a verdict for her dower.” Broughton v. Randall, Cro. Eliz. 502, Noy. 64.^[591] Here there could be no dower till the termination of the joint-tenantcy; therefore, if it were possible that they could have died simultaneously, the widow of neither could have been entitled; but this we believe impossible, therefore query, if there had been two widows and no evidence, should the case have been decided on presumption?

So also of joint-tenants (as partners) where the interest of the first deceased passes to the survivor, and not to the heir at law or next of kin of the deceased; but the heir at law or next of kin of the last survivor is entitled, (and see above Broughton v. Randall.)

Also as between testator and legatee, if the legatee die first, it is a lapsed legacy and falls into the residue; but if the legatee survive, his executor or administrator shall take it.^[592]

According to the civil law, which generally regulates the administration of personalty, it is held that when parent, whether father^[593] or mother,^[594] and child perish together, as in shipwreck, if the child be of the age of puberty, he shall be presumed to have survived; but on the contrary that he died first if he were under that age: regard being also had to the relation of the party who is to benefit by the decision. (Domat C. L. p. 652, 653.) But “it may happen several ways, that the mother may perish under the ruins of a building sooner than the child whom she suckles. It may happen that a son may be killed in a battel before his father; and on the same occasions, and likewise on all others, it may so fall out, that they both die in the same^[595] instant, or that even he who by reason of his age, or some other infirmity, might be presumed to die first does nevertheless die the last.” (Domat. 651).

By the Code Napoleon, Art. 721, 722, it is laid down that, of persons under fifteen, the eldest shall be presumed to have survived, above sixty the youngest; if some were under fifteen and others above sixty, the former are presumed to have survived; of persons between fifteen and sixty, males are presumed to have survived, the ages being equal or where the difference does not exceed one year.

The order of nature appears to afford the best general rule, and therefore, in the absence of all evidence to the contrary, it is to be wished that it were established, that the natural succession had taken place, as if no accident had occurred; that the child survived the parent; the nephew, the uncle; descendants, asscendants; legatees, testators; and generally that the younger had outlived the elder.

The decision in the following curious case appears to have been directed in conformity with such a principle. A father and son having perished at the battle of the Dunes, fought near Dunkirk in 1658, and the daughter and sister having at noon, on the very same day and hour, taken the vows in a nunnery, whereby she became dead in law^[596], a question arose as to survivorship among these three persons, when it was decided that the Nun died first, since her death, being voluntary, was consummated in a moment; whereas that of the father and son, being violent, was probably not immediate. Between the father and son there did not appear to be any data for a just conclusion, and it was therefore decreed, according to the established rule above stated, that the son had survived the father.

But since it must be admitted that questions of Survivorship will occasionally assume a form highly capable of physiological elucidation, we are bound to consider the subject as an article of Medical Jurisprudence. The physical proofs by which we can arrive at a conclusion upon the fact of Survivorship, are necessarily precarious and doubtful; but, in the absence of all other testimony, they may be occasionally admissible: a question, for instance, has arisen in a case where the mother and infant have both been found dead, after a clandestine delivery, whether any physiological investigation could determine which of the two survived the other, and upon this question there have been several curious decisions; Valentini, in his Pandects, relates an instance in which the mother and offspring both lost their lives during the pangs of a difficult and protracted labour; when the medical witnesses, having considered the extreme delicacy of the infant on the one hand, and the exhaustion of the parent on the other, arrived at the conclusion that the latter must have been the first to perish. The Imperial Chamber of Wetzlar^[597] came to a similar decision, in a case somewhat analogous; but in opposition to such an opinion Capuron,^[598] Belloc,^[599] and Sue^[600] have maintained the extreme uncertainty of any general conclusion deduced from so many uncertain data; a judgment in which we heartily concur. Let us, however, suppose a question of Survivorship to have arisen in consequence of a party having perished by famine, on a barren rock; here the lights of science may assist the decision; for the physiologist will tell us that persons so situated will perish with a rapidity proportioned to their youth, and state of robust vigour; a fact which is no less correctly than beautifully illustrated by the poet, in the awful fate of Count Ugolino and his children; where the father perished by inanition on the eighth day of his imprisonment, after having seen his sons, unfortunate victims of the most execrable vengeance ever conceived by man, sink amidst the convulsions of exhausted nature.

In a plurality of deaths occasioned by some common accident, as the falling of a building, an idea of survivorship may be deduced from an examination of the bodies, and of the relative situation in which they were found; it has been also said that if two persons are found dead in the water, and it be clearly made out that they were drowned, that besides the circumstantial presumptions afforded by evidence of greater buoyancy in the one body than in the other, or the knowledge that the one was a swimmer and the other not, we may by careful dissection surmise that death had supervened earlier in the one than in the other, from the appearances presented in the organs immediately acted on by this manner of death, such as the presence of frothy mucus in the lungs, generated by vain attempts to respire.^[601] With regard to this latter test, we confess that we place no reliance whatever upon its indication, for it will be found to depend upon so many extraneous circumstances as to be incapable of affording any just grounds for a conclusion: equally futile is that opinion which would attach any importance to the thoracic capacity of the individuals in question. Where a number of persons have perished from the inhalation of impure air, we may perhaps be allowed to conclude that those nearest the doors or windows, survived those who were found where the noxious air must have been in its highest state of concentration.