SURVIVORSHIP
The question of survivorship is not infrequently raised when a mother and her new-born infant are found dead, or where several persons have perished by a common accident. In the first case the mother is generally presumed to have lived longest; and this presumption may be borne out by the fact of the delivery being premature, or if there be considerable disproportion between the size of the child and the maternal passages. As pointed out before, important civil rights may depend upon the question as to the live birth of an infant; and the husband‘s rights to be tenant to the courtesy will, of course, depend upon the view taken as to the probable survivorship or not of the child.
With regard to the second question, much will depend upon the relative ages and strength of the individuals. Sex will also have to be taken into consideration. In the case of one or more persons found dead, either from wounds or other causes, the fact of some being warm and others cold, the presence of the rigor mortis in one and absence in the other, will point to the probable survivorship. The severity of the wounds and injuries to large arterial trunks must also be considered. (See test case, Underwood v. Wing, 1 Jur. N.S. 169.) In this case a man, his wife, and three children were washed overboard and drowned, one child, however, being seen alive a few minutes after the others were submerged. The question at issue was, Did the husband survive the wife, or the wife the husband? and on this Wightman, J., in summing up, said: “We may guess, or imagine, or fancy, but the law of England requires evidence, and we are of opinion that there is no evidence upon which we can give a judicial opinion that either survived the other; in fact, we think it unlikely that both did die at the same moment of time, but there is no evidence to show who was the survivor.” Verdict for the plaintiff.