Magruder, Guy A., Jr.

English

University of Missouri School of Law

Missouri Law Review Volume 13 Issue 2 April 1948 Article 7 1948 Uniform Simultaneous Death Act, The Guy A. Magruder Jr. Follow this and additional works at: https://scholarship.law.missouri.edu/mlr  Part of the Law Commons Recommended Citation Guy A. Magruder Jr., Uniform Simultaneous Death Act, The, 13 MO. L. REV. (1948) Available at: https://scholarship.law.missouri.edu/mlr/vol13/iss2/7 This Legislation is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact bassettcw@missouri.edu. LegislationTHE UNIFORM SIMULTANEOUS DEATH ACTCommon disaster cases, involving multiple deaths at apparently the sameinstant, present "some of the most vexing problems that lawyers and judges meet."'These problems, moreover, are not mere academic exercises; the disposition of anentire estate may depend upon the proof or, more often, the lack of proof as towhich of the victims in his dying moments held most tenaciously to life. And one canreasonably suppose that with the resumption of transportation at its normal, breath-taking pace, such accidents will occur with increasing frequency.In an attempt to establish an orderly scheme applicable to instances whereno proof of survivorship can be made, the Uniform Simultaneous Death Act wasformulated. As of September 10, 1947, this act is effective in Missouri. As thecommissioners who formulated it state, "The theory of the present act makes noeffort whatever to resolve the un-resoluble . . . (It is) that as to the property ofeach person he is presumed to be the survivor and it is administered accordingly."2This statement may sound simple. If so, it is deceptive, since the uniform actshould effect significant changes in the Missouri law as it stood prior thereto. Itis our purpose here to examine briefly the application of the uniform act and certainof the changes it seems reasonable to expect.Each provision of the act specifies that it only applies where "there is no suffi-cient evidence that the persons have died otherwise than simultaneously."3 Todetermine when the rules of the uniform act are to govern, therefore, we mustascertain where the court will draw the line as to the sufficiency of evidence ofsurvivorship. In this connection, it should be noted that Missouri, in accord withmost states, has refused to indulge in any presumption of survivorship, as contrastedto the complex presumptions based on sex, age and other factors found in the civillaw.4 While the uniform act would render any such presumptions nugatory hadthey existed, this fact is mentioned as perhaps shedding light upon some of thedecisions in regard to what is sufficient evidence of survivorship. The absence ofpresumption may account for a con-current leniency in the requirements of proof.1. Tracy and Adams, Evidence of Survivorship In Common Disaster Cases,1 38 MICH. L. REv. 801 (1940).2. HANDBOOK OF THE NATIONAL CONFERENCE OF COMM1SSIONERS ON UNIFORMSTATE LAWS AND PROCEEDINGS OF THE FIFrIETH ANNUAL CONFERENCE 266 (1940).3. Mo. REV. STAT. ANN. § § 317.1, 317.2, 317.3, 317.4 (Supp. 1947).4. U.S. Casualty Co. v. Kacer, 169 Mo. 301, 69 S.W. 370 (1902). Althoughcited in 1 FLA. L. REv. 75, at 77 (1948) as having been decided upon an implicitpresumption of simultaneous death, the language in Garbee v. St. Louis-San Fran-cisco Ry., 220 Mo. App. 1245, 290 S.W. 655 (1927), intimating that such a presump-tion may be used where there is no proof otherwise, does not appear to be more thana concession for the sake of argument.(230) 1Magruder: Magruder: Uniform Simultaneous Death ActPublished by University of Missouri School of Law Scholarship Repository, 1948Four cases seem to show the Missouri law as to when simultaneous death hasbeen proved by the evidence, in which case this act would necessarily apply. Whena husband, his wife, and their son were occupying an automobile directly in the pathof a train traveling at the rate of 55 miles per hour, all of them being dead whenthe train backed up to investigate following the accident, the court held there weresufficient facts to support a finding that all three died at the same time.5 In asimilar accident, a husband and wife were killed, both being dead when witnessesreached them. Again the cohrt stated that the evidence was sufficient to find thatthe husband did not survive the wife, "but that both died at the same time."6 Ineach of these cases, the evidence relied on by the court seemed to be the obviousdestructive force with which the train struck the auto, the extent to which thecar was demolished, the distance the bodies were thrown by the collision, and thefact that all the parties were dead as soon as others reached them. Where a husbandand wife were both killed by gas fumes in the bathroom of their home, the bodyof the husband being clothed and closer to the source of the gas and the bodyof the wife nude and more distance from the stove, the court, while admitting thatplausible theories could e advanced to show survivorship by either victim, seemedto uphold the trial court's finding that the parties died at the same moment 7 Wherethe body of the husband was found on the floor beside the seat of the railroad coachthe body of the wife occupied, both having been killed in the same pre-dawncollision, the court said that if there was a burden to show simultaneous death ofthe parties, it was sustained by showing the time of day the collision took place,the force and type of the collision, and the position'of the bodies.s Thus it seemsthat the Missouri courts, while applying no presumption either of survivorship orof simultaneous death, in the interests of justice have not been too demanding inrequiring proof that life departed from the two or three persons involved at preciselythe, same moment.On the other hand, two Missouri cases show what is deemed sufficient proofof survivorship, thus delineating situations where our uniform act would presum-ably not apply. Where the claims of the adverse parties depended upon whetheror not a child had survived its mother who died before its birth, proof that theinfant showed a faint heartbeat for a minute or two and uttered a cry or gasp, notliving more than one or two minutes at the most, was held sufficient to prove thatthe child outlived the mother.9 Where the deceased husband and wife were em-ployees on the same steamboat, the fact that the wife was seen in the stream approx-imately one and one-half minutes after the boat had capsized and turned completelyover, while the husband's body was not recgvered from under the boat until it wasrighted, was held to be sufficient to show that the wife survived the husband.' 05. Garbee v. St. Louis-San Francisco Ry., supra note 4.6. McCall v. Thompson, 348 Mo. 795, 155 S.W. 2d 161 (1941).7. Abrams v. Unknown Heirs of Rice, 317 Mo. 216, 295 S.W. 83 (1927).8. Aley v. Missouri Pacific Ry., 211 Mo. 460, 111 S.W. 102 (1908).9. Taylor v. Cawood, 211 S.W. (Mo. 1919).10 Warren v. Aetna Life Inc. Co. of Hartford, Conn., 202 Mo. App. 1, 213S.W. 527 (1919).1948] LEGISLA TION2Missouri Law Review, Vol. 13, Iss. 2 [1948], Art. 7https://scholarship.law.missouri.edu/mlr/vol13/iss2/7MISSOURI LAW REVIEWThis, then, is the state of Missouri law on what is sufficient proof of survivor-ship and what is proof of simultaneous death. Since the rules under the uniform actapply when no proof of survivorship is made, no positive finding of simultaneousdeath would appear to be necessary. Therefore we might well question whether thecases discussed s.tpra which seem to bd extreme in holding, on the bases of theevidence before the court, that simultaneous death occurred will continue to repre-sent the law. The uniform act in effect establishes a presumption of simultaneousdeath in the situations it covers; and if we assume that the rules of the act aresubstantially just, the court can find that simultaneous death occurred by applyingthe statutory presumption, without torturing the facts.The first section of the uniform act 1 lays down the general rule that in asimultaneous death situation "the property of each person shall be disposed of as ifhe had survived"' with the exceptions carved out by the further provisions of theact which apply to specific relationihips between the deceased persons.Section 2 of the act,12 dealing with beneficiaries "designed to take successivelyby reason of survivorship under another person's disposition of property," mayperhaps need judicial decision to delineate the extent of its application. In asimultaneous death situation involving such beneficiaries, the property is to bedivided into as many portions as there were beneficiaries, and the portions distri-buted respectively as if each beneficiary had survived.Theapplication of this section can be shown' by two illustrations to which thelaw would apparently pertain. (1) A by a will, deed, or trust agreement providesthat his land shall go to B and C for their joint lives, the remainder to go tothe survivor of them. 13 Prior to the uniform act, if B and C were killed under suchcircumstances as to render i't impossible to prove which survived the other, itwould appear that claimants under neither could succeed to the property and itwould revert to the grantor, A. Now the uniform act applies, dividing the propertyand giving one-half to the successors of each party. (2) A by a will, deed, ortrust agreement provides that his land shall go to his son B in fee, but if his son Csurvives B, then the land shall go to C in fee. Here, assuming simultaneous deathof B and C, without the aid of tle statute it would appear that the land woulddescend to the successors of B, since claimants under C would not be able toestablish the occurrence of the condition precedent to their taking. Under theuniform act, however, the successors of each party would take one-half of theproperty. While it may be said that this is in derogation of the words of thegrant, which require proof of C's surviving B before anything vests in C, it seemsclear that it is more in accord with the true desires of the grantor under theseunusual circumstances.11. Mo. REV. STAT. ANN. § 317.1 (Supp. 1947).12. Id. § 317.2.13. Cf. Runions v. Runions, 207 S.W. 2d 1016 (Tenn. 1948), where this typeof estate apparently resulted from an attempt by a husband to create h tenancyby the entirety in himself and his wife by a conveyance of an undivided one-halfinterest to the wife.[Vol. 133Magruder: Magruder: Uniform Simultaneous Death ActPublished by University of Missouri School of Law Scholarship Repository, 1948The third' section of the act provides that where there is no sufficient evidencethat two joint tenants or tenants by the entirety have died otherwise than simul-taneously, "the property so held shall be distributed one-half as if one had survivedand one-half as if the other had survived." 14 If there are more than two jointtenants and all of them have so died, the section provides for a proportional distri-bution.Another instance where it appears that the uniform act has made a change inthe Missouri law is in the situation where the disposition of the proceeds of alife insurance policy is in issue, the insured and the beneficiary having died undercircumstances preventing proof of the survival of either. The law as it existedprior to the uniform act could decide adversely to the party bearing the burdenof proof; and whether the claimant under the insured or under the beneficiary hadihe burden depended upon the interpretation given to the rights of the beneficiaryunder the particular policy involved. Thus where an ordinary policy was payableto the insured's daughter "if surviving; if not, to the legal representatives of theinsured," and no right to change the beneficiary was reserved to the insured, itwas held that the daughter had a vested interest in the proceeds and the claimantunder her must prevail over the insured's legal representatives, who could notsustain the burden of proving that the daughter failed to survive her father.' 5 Onthe other hand, in a case involving the same factual situation except that theadministrator of the daughter was seeking to recover on a certificate issued by afraternal benefit association under which the insured had the right to changebeneficiaries, the case was decided adversely to the administrator on the groundthat the daughter did not have a vested interest under such a policy and helce aclaimant through her must fail, being unable to sustain the burden of proving thatshe survived her father. 6 Section 4 of the uniform act,17 creating as it does anirrebutable presumption in such a case that the insured survived, reaches a moredesirable, conclusion in that the disposition of the fund is not made to depend uponthe technical distinction of whether or not the beneficiary had a vested interestunder the policy. Moreover, it fulfills the presumably usual desire of the insuredto have the proceeds go to his successors rather than to those of the beneficiarywhen the beneficiary dies at approximately the same time.Section 6 of the act,'8 in providing that the act shall not apply where anapplicable will, living trust, deed or contract of insurance provides for dispositionin a manner different from the scheme of the act, suggests what would seem to be14. Mo. REv. STAT. ANN. § 317.3 (Supp. 1947)_15. U.S. Casualty Co. v. Kacer, supra note 4.16. Supreme Council of Royal Arcanum v. Kicer, 96 Mo. App. 93, 69 S.W.671 (1902). A keen concurring opinion by Bland, P.J., points up the logicaldifficulties that present themselves in such- a situation in that a presumption ofsimultaneous death of the parties is as faulty as a presumption that either survivedthe other, and that, in the absence of some advantage given to one claimant by thecontract to insurance the situation would amount to an insoluble dilemma.17. Mo. REv. STAT. ANN. § 317.4 (Supp. 1947).18. Id. § 317.6.1948] LEGISLATION4Missouri Law Review, Vol. 13, Iss. 2 [1948], Art. 7https://scholarship.law.missouri.edu/mlr/vol13/iss2/7234 MISSOURI LAW REVIEW [Vol. 13the most desirable solution to such situations, notwithstanding the adoption ofthe uniform act: that the instrument specifically provide for the desired dispositionin case a simultaneous death situation should occur.19 For maximum efficacythis provision should extend beyond the strict situation to which the simultaneousstatute applies, governing the disposition in all cases .vhere the subsequent bene-ficiary dies, say, within thirty days of his predecessor. Tailored to fit the precisesituation, such a provision would most adequately fulfill the wishes of the grantor,devisor or insured who normally prefer that his successor or beneficiary survivehim by an appreciable length of time before the property involved should pass.Guy A. MAGRUDER, JR.19. Matter of Fowles' Will, 222 N.Y. 222, 118 N.E. 611 (1918), illustratesthe use of such a provision.5Magruder: Magruder: Uniform Simultaneous Death ActPublished by University of Missouri School of Law Scholarship Repository, 1948

Uniform Simultaneous Death Act, The

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Uniform Simultaneous Death Act, The

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