boat on the right-hand side of the deck and found it filled with women, no man being allowed to enter, and when it had left the ves sel's side he saw it capsize. Fighting his way over to the left-hand side of the ship with great difficulty through a crowd of sailors who were keeping every one back, he at tempted to reach the other life-boat, and was stopped by a man armed with an ax, but he succeeded in getting by him, after being cut on the wrist, and jumped over the side, and was the last to get into the life-boat, despite the efforts of its occupants to throw him out. The last time he saw Mrs. Rhodes and her son was just prior to his going overboard, and he thought it would have been impos sible for them to force their way through the crowd of sailors who kept every one back from the boats; that he was positive that both remained on deck, as his boat was the last one to leave the ship; that after his boat had gone some distance away, the ship went down with a lurch, and all on board were drowned, and that these parties died to gether; that the scene made an impression on his mind that he could never forget. Some six weeks later the body of Eugene Rhodes came up in a fishing net off the coast of Holland, but the mother's body was never found. " Mrs. Rhodes was about fiftytwo years of age at the time of her death. was corpulent of figure and short-winded in breathing; her son was twenty-three, a rather good swimmer, had never been mar ried, was her only child, and died intestate. Upon the trial, the Court held that there could be no presumption by which it could be determined who was the survivor of two persons lost in a common disaster, and that, in the absence of proof, the rule was that property belonging to either must be disposcd of by will or by the laws of descent as if both had died at the same time; that the intention of the will should therefore govern; and accordingly sustained the contention advanced by the Home.
Upon appeal the Court of Appeals of the District of Columbia held with the lower count that no presumption of survivorship could be indulged, whatever may have been the sex, age or physical condition of the per sons so dying, but that the law requires evi dence as its basis of action. Assuming the order of death of mother and son to be unascertainable from evidence, the Court viewed with equal disfavor the presumption that both deaths occurred simultaneously, stating that such view would be but the substitution of one presumption for another and, if pos sible, more unreasonable one. The death of the son in the lifetime of the mother was held to be a condition precedent to the tak ing effect of the bequest to the Home, and the burden of proof was therefore thrown upon it as legatee. The doctrine of intention being the cardinal rule for the construction of wills was approved, but the Court did not think it could be enlarged to the extent of supplying language to cover a contingency which had not only been overlooked, but ac tually unprovided for, by the testatrix her self. Therefore the claim of the Home must fail. The burden of proof as between the re spective next of kin of testatrix and her son was then considered and a strong contention in favor of the son was found from analogy that prevails in actions of ejectment, for, in asmuch as the law casts descent upon the son, it seemed to place the burden of proof upon the next of kin of the mother to show an extinction of such intervening preferential right of the son's representatives. The Court preferred to base its opinion, however, upon the intention of the will as they viewed it and ruled therefore that such intention raised a prima fade right in the next of kin of the son and imposed the burden upon the mother's representatives to displace it. A decree to that effect vas accordingly so en tered. Thus it appears that two of the three sets
