Part 32 (1/2)
”Before considering the evidence which you have heard, gentlemen,” he said, ”it will be well for me to say a few words to you on the general legal aspects of the case which is occupying our attention.”
”If a person goes abroad or disappears from his home and his ordinary places of resort and is absent for a long period of time, the presumption of death arises at the expiration of seven years from the date on which he was last heard of. That is to say, that the total disappearance of an individual for seven years const.i.tutes presumptive evidence that the said individual is dead; and the presumption can be set aside only by the production of evidence that he was alive at some time within that period of seven years. But if, on the other hand, it is sought to presume the death of a person who has been absent for a shorter period than seven years, it is necessary to produce such evidence as shall make it highly probable that the said person is dead.
Of course, presumption implies supposition as opposed to actual demonstration; but, nevertheless, the evidence in such a case must be of a kind that tends to create a very strong belief that death has occurred; and I need hardly say that the shorter the period of absence, the more convincing must be the evidence.
”In the present case, the testator, John Bellingham, has been absent somewhat under two years. This is a relatively short period, and in itself gives rise to no presumption of death. Nevertheless, death has been presumed in a case where the period of absence was even shorter and the insurance recovered; but here the evidence supporting the belief in the occurrence of death was exceedingly weighty.
”The testator in this case was a s.h.i.+pmaster, and his disappearance was accompanied by the disappearance of the s.h.i.+p and the entire s.h.i.+p's company in the course of a voyage from London to Ma.r.s.eilles. The loss of the s.h.i.+p and her crew was the only reasonable explanation of the disappearance, and, short of actual demonstration, the facts offered convincing evidence of the death of all persons on board. I mention this case as an ill.u.s.tration. You are not dealing with speculative probabilities. You are contemplating a very momentous proceeding, and you must be very sure of your ground. Consider what it is that you are asked to do.
”The pet.i.tioner asks permission to presume the death of the testator in order that the testator's property may be distributed among the beneficiaries under the will. The granting of such permission involves us in the gravest responsibility. An ill-considered decision might be productive of a serious injustice to the testator, an injustice that could never be remedied. Hence it is inc.u.mbent upon you to weigh the evidence with the greatest care, to come to no decision without the profoundest consideration of all the facts.
”The evidence that you have heard divides itself into two parts--that relating to the circ.u.mstances of the testator's disappearance, and that relating to certain human remains. In connection with the latter I can only express my surprise and regret that the application was not postponed until the completion of the coroner's inquest, and leave you to consider the evidence. You will bear in mind that Doctor Summers has stated explicitly that the remains cannot be identified as those of any particular individual, but that the testator and the unknown deceased had so many points of resemblance that they might possibly be one and the same person.
”With reference to the circ.u.mstances of the disappearance, you have heard the evidence of Mr. Jellicoe to the effect that the testator has on no previous occasion gone abroad without informing him as to his proposed destination. But in considering what weight you are to give to this statement you will bear in mind that when the testator set out for Paris after his interview with Doctor Norbury he left Mr. Jellicoe without any information as to his specific destination, his address in Paris, or the precise date when he should return, and that Mr. Jellicoe was unable to tell us where the testator went or what was his business.
Mr. Jellicoe was, in fact, for a time without any means of tracing the testator or ascertaining his whereabouts.
”The evidence of the housemaid, Dobbs, and of Mr. Hurst is rather confusing. It appears that the testator came to the house, was shown into a certain room, and when looked for later was not to be found. A search of the premises showed that he was not in the house, whence it seems to follow that he must have left it; but since no one was informed of his intention to leave, and he had expressed the intention of staying to see Mr. Hurst, his conduct in thus going away surrept.i.tiously must appear somewhat eccentric. The point that you have to consider, therefore, is whether a person who is capable of thus departing in a surrept.i.tious and eccentric manner from a house, without giving notice to the servants, is capable also of departing in a surrept.i.tious and eccentric manner from his usual places of resort without giving notice to his friends or thereafter informing them of his whereabouts.
”The questions, then, gentlemen, that you have to ask yourselves before deciding on your verdict are two: first, Are the circ.u.mstances of the testator's disappearance and his continued absence incongruous with his habits and personal peculiarities as they are known to you? and second, Are there any facts which indicate in a positive manner that the testator is dead? Ask yourselves these questions, gentlemen, and the answers to them, furnished by the evidence that you have heard, will guide you to your decision.”
Having delivered himself of the above instructions, the judge applied himself to the perusal of the will with professional gusto, in which occupation he was presently disturbed by the announcement of the foreman of the jury that a verdict had been agreed upon.
The judge sat up and glanced at the jury-box, and when the foreman proceeded to state that ”We find no sufficient reason for presuming the testator, John Bellingham, to be dead,” he nodded approvingly. Evidently that was his opinion, too, as he was careful to explain when he conveyed to Mr. Loram the refusal of the Court to grant the permission applied for.
The decision was a great relief to me, and also, I think, to Miss Bellingham; but most of all to her father, who, with instinctive good manners, since he could not suppress a smile of triumph, rose hastily and stumped out of the Court, so that the discomfited Hurst should not see him. His daughter and I followed, and as we left the Court she remarked, with a smile:
”So our pauperism is not, after all, made absolute. There is still a chance for us in the Chapter of Accidents--and perhaps even for poor old Uncle John.”
CHAPTER XV
CIRc.u.mSTANTIAL EVIDENCE
The morning after the hearing saw me setting forth on my round in more than usually good spirits. The round itself was but a short one, for my list contained only a couple of ”chronics,” and this, perhaps, contributed to my cheerful outlook on life. But there were other reasons. The decision of the Court had come as an unexpected reprieve and the ruin of my friends' prospects was at least postponed. Then, I had learned that Thornd.y.k.e was back from Bristol and wished me to look in on him; and, finally, Miss Bellingham had agreed to spend this very afternoon with me, browsing round the galleries at the British Museum.
I had disposed of my two patients by a quarter to eleven, and three minutes later was striding down Mitre Court, all agog to hear what Thornd.y.k.e had to say with reference to my notes on the inquest. The ”oak” was open when I arrived at his chambers, and a modest flourish on the little bra.s.s knocker of the inner door was answered by my quondam teacher himself.
”How good of you, Berkeley,” he said, shaking hands genially, ”to look me up so early. I am all alone, just looking through the report of the evidence in yesterday's proceedings.”
He placed an easy chair for me, and, gathering up a bundle of type-written papers, laid them aside on the table.
”Were you surprised at the decision?” I asked.
”No,” he answered. ”Two years is a short period of absence; but still, it might easily have gone the other way. I am greatly relieved. The respite gives us time to carry out our investigations without undue hurry.”
”Did you find my notes of any use?” I asked.
”Heath did. Polton handed them to him, and they were invaluable to him for his cross-examination. I haven't seen them yet; in fact, I have only just got them back from him. Let us go through them together now.”