In Re the Estate of Loucks

MELVIN, J.

The brothers and sisters of Wallace E. Loucks, deceased, prosecute an appeal from a decree of distribution whereby the entire estate of said Wallace E. Loucks was given to the estate of his deceased child Thelma G. Loucks for the benefit of her heirs at law, her maternal grandparents. There is also an appeal from the order denying the motion of said brothers and sisters of Wallace E. Loucks for a new trial.

Wallace E. Loucks, his wife Elsie May Loucks, and their infant daughter Thelma G. Loucks were killed in a collision between a railway train and the automobile in which they were passengers. The instantaneous death of Mrs. Loucks is unquestioned. The principal controversy, therefore, is upon the question whether or not Wallace E. Loucks survived his daughter, who was his only child. If he did outlive her, these appeals should be successful; if Thelma G. Loucks survived her father, the decree and order from which appeals are taken, should be affirmed. The question of fact was tried by the court, a jury having been waived by all interested parties, and the court found that Wallace E. Loucks died leaving his daughter Thelma as his only heir at law..

The appellants contend-that from the evidence received in the trial of the issues of fact it was impossible to determine with any satisfactory degree of accuracy whether the father or the child died first, and that, therefore, the presumption of our statute (Code Civ. Proe., see. 1963, subd. 40) should prevail in, their favor. That subdivision is as follows: “When two persons perish in the same calamity, such as a wreck, a battle, or a conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to the following rules . . . Fifth. If one be under fifteen, or over sixty, and the other between those ages, the latter is presumed to have survived.”

Appellants also assert that the burden of proving the survival of the child beyond the life of her father was upon respondents, and that the evidence is so unsatisfactory as to

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compel the conclusion that they failed to meet the obligation of this rule. Appellants advance the argument that the respondents having failed to establish by a preponderance of evidence the death of Mr. Loucks prior to that of his daughter, even if no resort be had to our statute of presumptions, the decision should have been made in accordance with the rule of the common law whereby the courts refused to determine who of two persons so related, killed by the same calamity, survived the other, but distributed the estates as if the deaths occurred at the same instant.