DEATH PRESUMED

Evening Star, Issue 23683, 17 September 1940, Page 6

DEATH PRESUMED

INSURANCE CLAIM CASE AR6UMENT BEFORE APPEAL CWRT WELLINGTON, September 17. Hearing of the case, the A.M.P. Society versus the Public Trustee, wai continued in the Appeal Court. Mr Byrne, of the Public Trust, arguing the case for the respondent, contended that the law as to the effect of a grant of probate made pursuant to an order giving leave to swear death, was the same in New Zealand as -in England, and the court _ should apply, the same test in determining whether or not the facts justified an order to swear death. Mr Byrne contended that the circumstances surrounding Montgomery’s disappearance were such as to make death the only reasonable, inference. The only other explanatitfif* was that Montgomery voluntarily abandoned his wife and family. Such an abandonment would be a wrongful act on Montgomery’s part, and would not lightly be presumed by the court. Decision was reserved. [The disappearance of William Alfred Joseph Suiter Montgomery, 4 baker, while on his daily round delivering bread at Ngatea, near Thames, on February 3, 1936, and the question of payment of his life insurance (£3,000) constitute the case. Montgomery’s van was found near the wharf on Piako River, but no trace of Montgomery has been found since then. At' the time of his disappearance he was in good health and sound financial position, and there appeared no reason why he should have taken his own life. The view commonly accepted in the district was that he had. accidentally fallen into the river, which was then, somewhat flooded, and had _ been drowned. Mr Justice Johnston, in the Supreme Court hearing, gave leave to swear death, at the same time pointing out that the insurance companies could defend proceedings on the policy on the ground that there was no evidence of death. Mr Watson, for the insurance companies, said that in New Zealand, once probate or_ letters of administration Were obtained, the onus was then thrown on the insurance companies to prove affirmatively that the missing person was not dead, but alive. In England the law placed no such burden on the companies.]