Smith v. Croom (7 Fla. 81, 1857)

DuPont, J.,

delivered the opinion of the Court:

This cause arose out of the disastrous events connected with the loss of the ill-fated Steamer “ Home” on her passage from the city of New York to the city of Charleston, S. C., on the night of the 9th of October, 1837. Hardy B. Croom and family, consisting of his wife and three children ■ — Henrietta Mary aboutsixteen, William Henry about thirteen and Justina about seven years of age — were passengers on board the steamer and were amongst those that were lost. Mrs. Camack a relative, also constituted one of the family upon that occasion. The bill was filed to determine the succession to such of the estates of Hardy B. Croom as were located in the State of Florida, and upon the hearing before the Chancellor, the bill was decreed to be dismissed. The Complainants have appealed from that decision and this Court is now called on to determine upon its correctness.

For a full understanding of the claims of the respective parties it is proper to state that the complainant Henrietta Smith, is the mother of the wife of Hardy B. Croom, and consequently the grand-mother of the children through whom she asserts her claim, and that the other complainant, Elizabeth M. Armistead, is the sister of Mrs. Croom and the aunt of the children. Mrs. Smith is also the administratrix on the estate of the children. The defendants are the brothers and sisters of H. B. Croom, and Bryan Croom is the administrator on his estate in Florida.

The complainant Henrietta, grounds her claim upon the allegation that the domicil of Hardy B. Croom at the time of his decease was in the State of North Carolina —that all of his children survived him and succeed to his «states, and that by the laws of North Carolina, she as the next of kin of Wm. Henry, the last survivor of the children, became the sole distributee of the personal property of Hardy B. Croom, and by the laws of Florida heiress to one moiety of two-thirds of the real estate in Florida, which descended to Wm. Henry, immediately from his two sisters. The complainant Mrs. Armistead asserts a claim to the other moiety of these two-thirds, under the statute of descents of Florida. To the one-third of the real estate, which William Henry inherited immediately from his father, they make no claim.

The issues made by the pleadings present two questions of fact, upon the solution of which the claims of the respective parties mainly depend1st, whether the father or the children, or either of them was the last survivor ? 2d, whether North Carolina or Florida was the domicil of the father at the date of his decease i

■ In entering upon the consideration of the first question above indicated, the court is not insensible to the painful anxiety which is always engendered, when the'determination of a fact is made to rest in a great measure upon presumption. We do not mean that legal presumption recognized by the civil law, which is founded upon the circumstance of age, sex and physical strength, for it is conceded that the doctrine of the civil law in this respect does not obtain in our jurisprudence, either as a principle of the common law,or as an enactment o-f the legislative authority. But we mean that presumption arising from the attendant circumstances, which results in producing the conviction in the mind that the fact is as it is alledged. We are also admonished by the very appropriate citations of the counsel for the appellees, that the conclusions of the court must be based upon certainty and not be the offspring of vague conjecture, or the balancing of mere probabilities. We would however remark, that the counsel seem to us to have pressed the doctrine upon this subject, beyond the legitimate bounds prescribed by the authorities cited. We do not understand the books which treat of the rules of evidence, as intending to mean that the certainty must reach that point which would exclude the possibility that the fact be otherwise ; but only that it should be of such a degree, induced by appropriate evidence as will produce moral conviction. This is the highest degree of certainty which can ever be reached even where resort is had to positive, in contradistinction to circumstantial evidence, for the witness who swears positively and with the most unhesitating confidence may after all mistake as to the fact or he may wilfully perjure himself. That degree of certainty then based upon appropriate evidence, whether positive or circumstantial, which produces moral conviction is all that is required in arriving at a conclusion which involves a question of fact.

The counsel for the appellees very appropriately insist that the burthen of proof as to the survivorship of the children is upon the complainants, and this position is yielded by the counsel on that side. They also hold that if the evidence of the complainants proves the precise time of the son’s death, they must also show that the father died before that time; that this may not be assumed, it must be proved. Both of these positions are undoubtedly correct, but the line of argument used to enforce their application as rules to govern the investigation of the facts of the case, is in our opinion unsupported by reason or authority. As we understood the argument, it was that' the same kind and degree of proof was required to prove the precise time at which the father ceased to breathe, as should be used to establish the exact time at which the son died. It so happens in this case that the time of the death of the son is proved by the positive evidence of two witnesses who saw him drown.— The precise time at which the father ceased to breathe depends for its establishment, upon a presumption of fact deduced from the attendant circumstances. Now to say that the conclusion upon the evidence adduced in reference to the latter fact is mere conjecture or surmise, because it should happen to differ in kind or fall in degree below that adduced in reference to the former, is to destroy all our ideas of the different kinds anddegrees of evidence which maybe used to elicit truth. Inferences or presumptions of facts are always more or less violent, dependent upon the circumstances which may be detailed by the' witnesses. In this very case the death of the father as a matter of fact, irrespective of the time at which it did occur is wholly dependent upon circumstantial evidence, for no witness testifies that he saw him in that critical moment; and yet that he did perish in that awful catastrophy, is as clearly and as fully proved, as is the death of the son. The citations from the recent case of Underwood vs. Wing, (31 Eng. L. and E. Repts. 297) contained in the brief of the counsel for the appellees, furnish a correct rule for the guidance of the Court, and in our investigations and conclusions we have endeavored to keep within the prescribed limits. The court Say “ the question of survivorship is the subject of evidence to be produced before the tribunal which is to decide upon it and which is to determine upon it, as it determines any other question of fact." “ It is not for the person who claims as next of kin to show that she did not [die first.]— It is not for the person who claims under the disposition to show that probably it might be one way or the other, he must show that that state of circumstances did occur which entitle him according to the language of the will.” If We have comprehended the principle to be deduced from these citations, it is that the question of survivorship in the case of a common calamity is a question of fact, involving the simple enquiry as to which of two or more individuals was the longer liver, and that that fact is to be proved as any other question oí fact, either by positive or circumstantial evidence, as the exigencies of the case might happen to require. By this rule we have been guided to the conclusion which we have reached.

A further citation from the same case is contained in the brief, to the doctrine of which we yield- our cordial assent. It is as follows': “It is not sufficient to show a variety .of circumstances on which it is very difficult. to form your mind ; that if you had to lay a wager you would rather lay it one way than the other. The heir at law is not to be dispossessed unless the devisee can show such circumstances as to displace him — not show that there is a confusion as to what happened and that it may have so happened as to entitle him, but there must be evidence as to who is the survivor.” While according our sanction to the correctness of these views we are nevertheless unable to perceive the force of the argument which was attempted to be deduced from them as applicable to the case before us. It was insisted upon the authority of this citation that the defendant being the heir at law and being known to be such, it would not be permitted to the complainants to oust him of his rights as heir, upon the mere preponderance of probabilities, but that the proof to this point must be such as to produce conviction. In such a case we think' the argument would be appropriate, but here the enquiry as to who is the heir or next of kin, is the very question to be determined.

The citations from the posthumous work of Mr. Feme, relied upon by the counsel who concluded the argument for the appellees, only establish the doctrine that as against the next of kin of the father, legal presumptions drawn from the circumstance of age, sex and health will not be permitted to prevail; and from this postulate the argument is attempted to be deduced that in such a case, presumptions of fact arising from mere circumstances, must also be rejected as matters of proof. We have already stated that these legal presumptions which obtain in and are recognized by the civil law, are not sanctioned in our jurisprudence. But while the mere legal presumption is rejected as the basis of a conclusion, yet it not unfrequently happens that the consideration of age, sex,