Bodwell v. Bodwell

113 Mass. 314

Opinion

Ames, J.

Until the cessation of the correspondence between these parties, there had been no indication of an intended desertion on the part of the husband. So far as any inference can be drawn from the long continued non-intercourse, and the total loss of all trace of him since that time, it has fully as strong a tendency to prove that he is not now living, as that he wilfully deserted her and has concealed from her the fact that he is still living. The rule is well settled, for most judicial purposes, that the presumption of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time they were last known to be living, after which the burden of proof is devolved upon the party asserting the life of the individual in question. 2 Greenl. Ev. § 278 f, and cases there cited. The only evidence on which the libellant relies as proof of desertion is that which raises a presumption of her husband’s death. It is true that this is a presumption of fact and may be rebutted. Flynn v. Coffee, 12 Allen, 133. But this presumption the evidence reported is not sufficient to overcome. On the contrary, the circumstances of the separation, and the character of the correspondence so long as it lasted, are such as to repel the inference of wilful desertion. We must therefore decide that, as the libellant has not proved either that her husband deserted her, or that he is still alive, no divorce can be granted upon her petition. Libel dismissed.