Section 10.5 Nature and Effect of Presumptions of Death

• Library: Estate Administration 2014 Supp

B. (§10.5) Nature and Effect of Presumptions of Death

The common law presumption and the statutes are in harmony with the maxim that, ‘“where the existence at one time of a certain condition or state of things of a continuing nature is shown, the presumption arises that such condition or state continues to exist until the contrary is shown.’ (Emphasis added).” Rector v. Mo. Dep’t of Natural Res., 685 S.W.2d 225, 228 (Mo. App. E.D. 1984) (quoting McDaniels v. Cutburth, 270 S.W. 353, 359 (Mo. 1925)). It is uniformly held that “[o]ne who is shown to be alive at a given time is presumed to remain alive until the contrary is shown by proof or, in the absence of proof, until a different presumption arises.” 25A C.J.S. Death § 3 (2002 and Supp. 2009); see also:

· Basman v. Frank, 250 S.W.2d 989, 994 (Mo. 1952)

· In re Buck’s Estate, 220 S.W. 716, 718 (Mo. App. E.D. 1920)

· Bergman v. Supreme Tent, Knights of Maccabees of the World, 220 S.W. 1029, 1031–32 (Mo. App. E.D. 1920)

The statutory and common law presumptions of death have both been called “mixed presumption of law and fact.” Duff v. Duff, 137 S.W. 909, 911 (Mo. App. W.D. 1911); Dickens v. Miller, 12 Mo. App. 408, 413 (E.D. 1882). The presumption, once validly raised by the plaintiff’s preliminary proof, makes a prima facie case that the missing...