INFERENCE OF DEATH.

Manawatu Standard, Volume LX, Issue 248, 17 September 1940, Page 2

INFERENCE OF DEATH.

COURT OF APPEAL CASE,

WELLINGTON, Sept. 17. The Court of Appeal yesterday heard an appeal by the Australian Alutual Provident Society, the Colonial Alutual Life Assurance Society, Ltd., and the State Fire and Accident Insurance Office against an. order by Air Justice Johnston giving leave to tho Public Trustee to swear to the death of AA’illiam Alfred Joseph Suiter Alontgomery, baker, of Ngatea, Thames, who disappeared, on February 3, 1936. The Court comprised the Chief Justice (Sir Michael Myers) and Air Justice Blair, Air Justice Kennedy and Air Justice Northcroft.

Opening the case for appellants, Mr Watson said that Montgomery had been insured for about £3OOO. He disappeared on February 3, 1936, and at that time was carrying on a bakery business in partnership with his wife at Ngatea. He was 54 years of age, and had two children. He had been delivering bread in a motor-van on the morning of the day he disappeared. The van was left near a wharf on the banks of the Piako River, and lie bad never been seen since. Air Watson said there was no dispute as to the facts, but there was a difference of opinion as to the inference to be drawn from the facts. Mr Justice Johnston had based his decision on a judgment of Air Justice Ostler, which counsel submitted was correct in England but wrong in New Zealand. In New Zealand if an insurance company was called on to pay a policy at the suit of the Public Trustee, and if it turned out that the missing man was alive the company would not be protected as was the Pub.ic Trustee by section 19 of the Public Trust Office Act. The Court should be extremely reluctant to make an ordei presuming the death of a person, Hie making of orders presuming death had far more importance in New Zealand than in England. Air Byrne, for respondent, 6aid there was nothing to prevent the Court from inferring death, even though seven years had not elapsed. An inference of death was permissible where, taking into consideration those circumstances relating to character, habits, status, and objects of life which usually controlled the conduct of men, death explained the facts, and no other reasonable explanation could be given for disappearance. Montgomery was a resident of the district of long standing, and his position as a baker made him well-known. His voluntary abandonment of his wife and family was not to be lightly assumed.