DEATH SWORN

Otago Daily Times, Issue 24405, 17 September 1940, Page 6

DEATH SWORN

BAKER’S DISAPPEARANCE APPEAL BY INSURANCE COMPANIES (Per United Press Association) WELLINGTON. Sept. 16, The disappearance of William Alfred Joseph Suiter Montgomery, a 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 are occupying the attention of the Appeal Court to-day. 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 portion, 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 somewha l flooded, and had been drowned. The Public Trustee, as holder of the will, dated 1925, applied in June last to the Supreme Court for an order granting leave to swear the death of the missing person, so that probate could be granted and the estate administered. This application was opposed by the A.M.P. Society, the Colonial Mutual Life Assurance, and + he State Fire Office, in which Montgomery’s life was insured for a total of £3OOO, Mr Justice Johnston, whom the application was heard, 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. The Appeal Court to-dav be."an the hearing of an appeal from this decision. Mr G. G. Watson, for the appellant insurance companies, said the case was of general importance to all insurance companies, as Mr Justice Johnston's judgment carried the slate of the law further against insurance companies than it had been before, and made an order on facts which hitherto would not have been considered sufficient. He submitted that Mr Justice Johnston had adopted a wrong view of the law, which, although correct in England, was wrong in New Zealand. In New Zealand, continued Mr Watson, the effect of the Administration Act was that, 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. Mr Justice Johnston, having accepted the law to be the same as in England, approached the facts in an attitude which he would not have adopted had he been aware of the true effect of the Administration Act. Had the judge approached the facts in a correct altitude, he would not have held that the evidence; produced was sufficient to enable him to make the order asked for. The hearing is unfinished.