IDENTITY AND SURVIVORSHIP. 239 by Mr. Best, "is nearly the same, because if it cannot be shown which died first, the fact will be treated by the tribunal as a thing unascertainable, so that for all that appears to the contrary both individuals may have died together." On the other hand, the law will not presume that there was a survivor any more than that there was a particular survivor. In a case, therefore, where a plaintiff's claim to property might have been sustained equally well by the survival of either of two persons, the court ruled that the claim of ownership had not been adequately established. "It is not impossible," they said, "for two persons to die at the same moment, and when exposed to the same peril under like circumstances, it is not, as a question of probability, very unlikely to happen. At most the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life-struggle one or the other may not have ceased to gasp first, especially when the transmission of title to property depends upon it; and hence, in the absence of other evidence, the fact is assumed to be unascertainable, and property rights are disposed of as if death occurred at the same time. This is done, not because the fact is proved, or that there is any presumption to that effect, but because there is no evidence and no presumption to the contrary." But questions of survivorship do not only arise as a consequence of the death of several persons in some common disaster; they arise also where persons have left their homes, and have remained absent from their relatives and friends for an extended period of time. It is a presumption of the law, based upon the known stability of certain human conditions, that a person once proved to have been born is still alive ‡—a presumption which, in general, is only defeated by the lapse of time so great that continuance of life would, in our experience, be palpably impossible.§ But where a man has departed from his home, and for seven years no tidings have been received from him by those who would naturally have heard from him were he alive, it is a doctrine of the law, sanctioned by a long series of decisions, that his death must be presumed.|| The period of seven years was adopted by the courts in analogy to an early English statute, which exempts from the penalties of bigamy "any person whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent himself or herself, the one from the other, by the space of seven years together, in any parts within the king's dominions, the one of them not knowing the other to be living within that time." Mere absence is not sufficient to satisfy the requirements of the rule;** those who would * Best on Presumptions, § 144. + Newell vs. Nicholls, 75 N. Y. 78. Greenleaf, Evidence, vol. i., § 41; Stephen, Digest of Law of Evidence, art. 99; Eagle's Case, 3 Abb. Pr. 218; O'Gara vs. Eisenlohr, 38 N. Y. 296. § 92 Am. Dec. 704, note; Sprigg vs. Moale, 28 Md. 497. Eagle's Case, 3 Abb. Pr. 218; McCarter vs. Camee, 1 Barb. Ch. 455; Davie vs. Briggs, 97 U. S. 628; Greenleaf, Evidence, vol. i., § 41. ¶ 1 Jac. 1, ch. 11. § 2; and see Penal Code, § 299, subd. 1. Compare the statute relating to persons on whose lives an estate in lands or tenements depends. 19 Car., ii., ch. 6, § 2; and see Rev. Stat. 749, § 6; 5 Barb. 339, 354. 240 A SYSTEM OF LEGAL MEDICINE. naturally have heard from the absent man must have failed to receive the tidings they might reasonably expect; and even in such cases the presumption of death which arises is not, of course, an irrefragable presumption; it may be overcome either by conflicting presumptions* or by countervailing proof. On the other hand, it is not always essential that a period of seven years should elapse before the conclusion of death will be drawn by the law. If, in addition to the fact of a man's absence, it be shown that the circumstances attending his departure were such as to expose him to the chance of peril or disaster, the law, upon proof of these circumstances, may infer that his death occurred before the expiration either of seven years or of any specific period of time. Where, for example, a man attempts suicide and the attempt is frustrated, but the following day he disappears, the law is justified in drawing the conclusion that death occurred about the time of his departure, and the property rights of the survivors will be regulated accordingly. And similarly where the vessel in which a man has set sail from his home has long been past due at the port of its destination, and is believed to have foundered in a storm, the fact of death may be inferred before the usual period has expired.|| A recent case in this State illustrates the application of these doctrines. The missing man had set sail on his yacht for Kingston, Jamaica, and nothing was heard from him except that a vessel resembling the yacht was sighted twenty-nine days after his departure. On March 13, 1888, the day succeeding his departure, a great storm occurred; and the probable situation of the yacht was within the radius, if not within the center, of the hurricane. Pieces of wreckage resembling parts of the vessel were found a few days afterward; and though for six months, by cablegrams and letters, diligent search was made, no tidings of the missing man were received. The court held that his death must be presumed, and that his will, accordingly, should be admitted to probate. Where, however, the law presumes that a man is dead by reason of his absence, unheard of, for a period of seven years, it will not presume that his death occurred at any specific date within that period of time. As in the case of death by a common disaster, it refuses to indulge in any arbitrary rule; and the precise date of death is left to be established through the ordinary agencies of proof.** Such, at least, is the doctrine * Rex vs. Twining, 2 B. & Ad. 336. + Stouvenal vs. Stevens, 2 Daly, 319; Davie vs. Briggs, 97 U. S. 628. So a title to real estate which depends for its validity on the application of this presumption may not be free from reasonable doubt. Vought vs. Williams, 120 N. Y. 253; and compare Ferry vs. Sampson, 112 N. Y. 415. Greenleaf, Evidence, vol. i., § 41; Wharton, Evidence, § 1283; Davie vs. Briggs, 97 U. S. 628; Sheldon vs. Ferris, 45 Barb. 124; Oppenheim vs. Wolf, 3 Sandf. Ch. 517; Webster vs. Birchmore, 13 Ves. 362; Matter of Ackerman, 2 Redf. 521. In re Ketcham's Estate, 5 N. Y. Supp. 566. Oppenheim vs. Wolf, 3 Sandf. Ch. 517; Gerry vs. Post, 13 How. Pr. 118. ¶ Estate of Stewart, 3 N. Y. Supp. 284. ** Davie vs. Briggs, 97 U. S. 628; In re Phené's Trust, L. R. 5 Ch. App. 139; Nepean vs. Doe, 5 Barn. & Adol. 86; Nepeau vs. Knight, 2 Mees & W. 894; McCarter vs. Camee, 1 Barb. Ch. 456; Prudential Assur. Co. vs. Edwards, L. R. 2 App. Cases, 487; Re Rhodes, 36 Ch. D. 586; Matter of Thompson, L. R. 12 Prob. D. 100; Whiteley vs. Eq. Assur. Co., 72 Wis. 170; Hancock vs. Am. L. I. Co., 62 Mo. 30; Johnson vs. Merithew, 80 Me. 111; but see Burr vs. Sim, 4 Whart. 150; Whiting vs. Nicholl, 46 Ill. 230; Naisor vs. Brockway, Rich. Eq. Cas. 449; and ef. Eagle's Case, 3 Abb. Pr. 218. See also 91 Am. Dec. 526, note. of the best-considered decisions; and the authorities to the contrary are comparatively few. In the determination of problems of survivorship, as in the determination of problems of identity, a wide range has been given by the law to the instrumentalities of proof. In the effort to attain satisfactory evidence of death, the usual rules that govern the admission of testimony have been to a greater or less degree relaxed. Common reputation among the kindred of the deceased ;* even hearsay statements +-the declarations of persons who have themselves since died, and who were related by blood or marriage to the missing man-have been deemed admissible evidence both of the fact of death and of the date of its occurrence. In any case involving pedigree, hearsay evidence of deceased members of the family is admissible; and the term "pedigree," within the meaning of the law, embraces not only descent and relationship, but birth, marriage, and death, and the times when those events occurred.‡ Yet, in spite of this latitude of proof, the principles which have become so firmly established in our law as a guide to the determination of questions of survivorship leave, it will be seen, but little opportunity for the application to those questions of the teachings of medical science. In cases where persons have been found dead, the relative degree of putrefaction has not infrequently served as a material guide to the determination of the comparative duration of their lives. In the case of the death of mother and child in childbed, there was, among continental jurists, a strong presumption that the former survived, for there was prima facie evidence of still-birth; but many recorded instances attest the fact that an unborn child may in fact survive its mother.§ In some instances, too, where proof of the attendant circumstances of a disaster has been furnished, medical evidence as to the comparative susceptibility to various destructive agencies of the old and the young, of males and of females, may serve to confirm the hypothesis of the survivorship of one from among a number of the victims. Thus, in cases of suffocation, a woman, by reason of a diminished liability to asthma, is presumed, it is said, to survive a man.|| In cases where persons have been buried alive by earthquake or beneath some fallen weight, the younger, it is said, are likely to survive the older. Yet the probative force of such evidence is weakened by the fact that the conclusions of medical science on these topics are subject to variation through manifold disturbing causes. Medical testimony, indeed, finds its widest scope not in lieu of, but in aid of, the other agencies of proof. Where men have perished away from human sight, the mystery of the order in which they met their death * Morrill vs. Foster, 33 N. H. 379; Am. Ins. Co. vs. Rosenagle, 77 Pa. St. 507; Mason vs. Fuller, 45 Vt. 29; Anderson vs. Parker, 6 Cal. 197; Dupont vs. Davis, 30 Wis. 170; Clark vs. Owens, 18 N. Y. 434; Jackson vs. Ety, 5 Cow. 414. + Wilson vs. Brownlee, 24 Ark. 586; 91 Am. Dec. 523; Jackson vs. King, 5 Cow. 237; Fulkerson vs. Holmes, 117 U. S. 389, 397; Greenleaf, Evidence, vol. i., § 103. Eisenlord vs. Clum, 126 N. Y. 552. But where questions of birth, death, age, or relationship are merely incidental to the inquiry, and the controversy is not purely genealogical, hearsay evidence is inadmissible. Eisenlord vs. Clum, supra, p. 566; Haines vs. Guthrie, L. R. 13 Q. B. D. 818; see, however, Wilson vs. Brownlee, 24 Ark. 586; 91 Am. Dec. 523. Wharton and Stillé's Medical Jurisprudence, vol. ii., § 1054. Ibid., § 1025. ¶ Ibid., § 1051. is one that can never be solved with much assurance of success by any general consideration of medical laws. "The scene," as Judge Church has said, "passes at once beyond the vision of human penetration;" and attempts to solve the mystery leave one but the more impressed with the futility of the effort. A thousand circumstances may be suggested to shatter the theory of the survivorship of the one or the other of the victims. A thousand unknown forces may operate to neutralize the forces on which we had counted and on which our theory had been based; and so our law has said, and wisely, as it seems to me, that the general rules of hygiene will not avail to reveal to us that which no eye has seen and no ear has heard. Those rules find their true application when they are used as corroborative of conclusions that known facts may legitimately yield. They will not of themselves supply the need of proof; they will not of themselves enable us to evolve the known from the unknown. There are cases, of course, where any determinate rule is better than no rule at all. There are rules like the rule of the road, which, as it has often been observed, might as well be one way as the other; only let the way be certain and defined. And arbitrary presumptions as to survivorship can find their vindication, if they can find it at all, only in some such consideration of the needs and the policy of the law. Yet it is very doubtful whether questions of the comparative duration of the lives of men are such as to demand an artificial and determinate test. Instances of its possible application are hardly numerous enough to make the rule in any event an urgent necessity; and the determination of the property rights of the living by a fixed and arbitrary standard cannot but involve injustice at times to those whose rights are excluded or denied. I can never believe, for my part, that it is wise, unless in matters whose solution is essentially indifferent or where some solution is imperatively required, to solve the problems of the law by artificial and formal tests. I can never believe that it is wise to place the doctrines of the law out of relation either to the teachings of experience or to the promptings of reason; and it seems to me that courts of justice, by frankly admitting their inability to solve a problem which in its nature is insoluble, will better promote the ends of their existence than by the forced assumption of a knowledge which it is not given them to have. HOMICIDE AND WOUNDS. BY LEWIS BALCH, M.D., PH.D. Homicide defined. The penal code of the State of New York defines homicide as "the killing of one human being by the act, procurement, or omission of another." (Penal Code 179.) The manner of the death, its cause, its time, and the means or weapons, with the wounds found on the body, are all questions properly referred to medical experts, they being questions of which one educated to observe the various phenomena of life and the morbid changes produced by disease or injury is expected to have the special knowledge necessary to aid the course of justice Homicide by itself will not be further treated, but as it appears in conjunction with the consideration of wounds made with criminal intent. Wounds defined.-Under the old English law a wound had necessarily to be an injury which in some way divided the true skin. But this would leave out of the category injuries with such weapons as would not cut or divide the skin, and which, nevertheless, would cause death. In surgery, wounds are variously classed as incised, contused, lacerated, gunshot, and punctured or penetrating wounds, while fractures of bone, although done by violence inflicted by another, are placed in a different list, to which is generally added dislocations. I fail to see any good reason why in medical jurisprudence all injuries which are caused by the attack of one person upon another should not be considered as wounds, whether it is a bruise, cut, or break; for in a severe contusion we have injury done to the soft parts, apt to be followed by death of the part so injured, and the consequent danger of septic poisoning as the resultant; and the contusion may cause rupture of an organ such as liver or kidney, which should certainly be considered as a wound. A broken bone, when the break is by violence, in contradistinction to one done for the refracture of a badly united bone, wounds for a greater or lesser extent the muscles at the point of fracture, although the wound does not extend to the outer covering. Likewise a dislocation may cause such a wounding to nerve tissue as to occasion instantaneous death, and yet there be no cutting or tearing of the skin. Scalds and burns are not ordinarily considered in the light of wounds, and are not so if the word is held to mean only a cut or torn condition of the true skin; but they are undoubtedly wounds in a legal sense when inflicted unlawfully. I am inclined, therefore, to consider a wound as an injury produced by violence whereby solution of continuity in hard or soft parts is procured, or where loss of substance from death of the part due to the violence follows its infliction. When |