Thomas v Thomas
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 1864 |
| Date | 16 December 1864 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 635
HIGH COURT OF CHANCERY
S. C. 11 L. T. 471; 13 W. R. 225. See In re Benham's Trust, 1867, L. R. 4 Eq. 420. Overruled, In re Phene's Trusts, 1869-70, L. R. 5 Ch. 139.
Presumption of Death.
[298] thomas v. thomas. Dec. 16, 1864. [S. C. 11 L. T. 471: 13 W. E. 225. See In re Eenham's Trust, 1867, L. E. 4 Eq. 420. Overruled, In re Phene's Trusts, 1869-70, L. E. 5 Ch. 139.] Presumption of Death. Although the law presumes a person, who has not been heard of for seven years, to be dead, yet (in the absence of special circumstances) it draws no presumption from that fact as to the particular period when he died; and the onus of proving death at any particular period of time within the seven years lies with the party alleging death at such particular time. This petition was presented by James William Thomas, the Plaintiff in the cause, praying that a sum of money, which had been paid into Court, and represented the residuary estate of James Thomas, the testator in the cause, might be paid out; and the question was as to the time of death of John Savage Thomas, to whom one-third of such residue had been bequeathed, and who had not been heard of for more than seven years. . James Thomas, the testator, by his will, dated in November 1855, gave and bequeathed to his three sons, James William Thomas (the Plaintiff), Francis Thomas (the Defendant), and John Savage Thomas, all [299]- his property whatsoever and wheresoever, to be divided between them in equal proportions. The testator, James Thomas, died on the 4th day of July 1859. With regard to the shares of James William Thomas and Francis Thomas no difficulty arose; and the only question was who, under the following circumstances, were entitled to the share of John Savage Thomas. Upon the petition coming on upon the 14th of February 1864, the Vice-Chancellor had ordered a reference to Chambers, to inquire whether John Savage Thomas was living or dead; and, if dead, when he died; and whether he survived James Thomas, the testator in the cause, who were his representatives, and whether he left issue; also to inquire who were the next of kin of testator, James Thomas, at time of his death. The Chief Clerk by his certificate found, as the result of the inquiries made in pursuance of'the order, that John Savage Thomas in 1852 went to Australia; that in March 1853 he married at Melbourne; that he and his wife continued to live together till June 1856...
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S v M (Access Order)
...of an appellate court to the consideration of a decision on fact by the court of first instance were described by Lord Macmillan in Thomas v. Thomas 1947 S.C. (HL) 45 at p. 59. That was an action of divorce, but what he said in that case applies with just as much force to disputes about acc......