Lord Mansfield's Undecided Case. By item one she devised to her husband for life one-half of the income of all her prop erty. Item two gave to her son Eugene, subject to the provisions of the above, all her property of whatsoever nature absolutely. Item three provided that in the event of the death of my son Eugene Rhodes before the decease of either myself or my husband . . . everything I own on earth" was disposed of, first, by giving all her pictures and paintings to the Young Women's Christian Home of the city of Washington, and, second, the rest and residue of her property to a trustee in trust to pay over the rents and profits arising therefrom to her husband during his life, and at his death to turn over the same, with the accumulations thereon, to the sai'd Young Women's Christian Home, absolutely. Item four provided that "In the event of my be coming the survivor of 'both my husband . . . and my son ... I then give, de vise and bequeath all my property ... of whatsoever nature, kind and description to the Young Women's Christian Home, to have and to hold the same absolutely and forever for the good of that institution." The husband having predeceased the testa trix the provisions relative to him were elim inated. Three sets of claimants filed claims to her estate, in response to a bill of interpleader filed by the administrators with the will an nexed, setting out their respective claims: First: A and B, brother and sister and only next of kin of the testatrix, who alleged that none of the contingencies provided for in the will, viz., that the son survive the mother or that the mother survive the son, had happened; therefore, in contemplation of law, the estate must be disposed of as though the death of each had occurred at the same time, and that the estate of the testatrix ac cordingly descended to her next of kin, as in case of intestacy. Second: C, administrator of the deceased son, who claimed either that the son pre
29
sumptively survived the mother and that the preponderance of evidence was in favor of such survivorship, or that the burden of proof lay on the other defendants to estab lish that he did not so survive the mother; and that, if he did survive her, he took her estate toy act of law and not by will, because the will gives the same estate as he would have taken in case of intestacy, and that title by law prevails to exclusion of title by act of parties. Third: D, the Home, who alleged that the will, taken as a whole, showed a plain in tention that unless the son should survive the mother, so as to become the beneficiary and enter upon the substantial enjoyment of her estate, the same should pass to it to the ex clusion of the next of kin of all other persons. The only evidence tending to shed any light upon the order of death of the mother and son, and, indeed, the only evidence tend ing to show their movements after the col lision at all, was furnished by the affidavits of two of the twenty-one survivors, a lady, Miss Bocker, the sole woman survivor, and John Vcvera, of Cleveland, Ohio. Miss Becker's statement was to the effect that, just after the collision, she saw Mrs. Rhodes come out of the cabin she occupied with her son, clothed in a blanket over her night dress and that she never saw her again; that subse quently (certainly some minutes later) when Miss Bocker went on deck she saw the son Eugene just in front of her, and that she never saw him afterwards. John Vevera stated that on the night pre ceding the disaster he sat at the same table with mother and son and his attention was particularly attracted to them; that after the accident, when every one was on deck, he saw them together, the mother with her arms thrown around the neck of the son in a grip that he thought she would never lose, and the son endeavoring to put a shawl around her to protect her from the cold. When Vevera first came on deck lie went to a life
