Death by Disaster: Anglo-American Presumptions, 1766-2006

Abstract

Suppose that two persons, A and B, died in a common disaster. B was the child of A and stood to receive some or all of A's property at A's death. Yet B (and, in turn, B's successors) would only be so entitled if B survived A, at least for an instant. How was a court to determine whether B so survived? This article explores the answers in England and America from 1766 to 2006. Commissioned for a book on The Law of Presumptions: Essays in Comparative Legal History, the article examines the history of the presumptions in Anglo-American law that govern survivorship. The article uses treatises, cases, and legislative records to shed new light on the history, and to explore the resistance at common law to any presumption on the matter - a resistance that was only overcome by legislation in the twentieth century.