“The claim therefore rests upon evidence of a positive character.  My learned friend asserts that the testator is presumably dead, and it is for him to prove what he has affirmed.  Now, has he done this?  I submit that he has not.  He has argued with great force and ingenuity that the testator, being a bachelor, a solitary man without wife or child, dependent or master, public or private office or duty, or any bond, responsibility, or any other condition limiting his freedom of action, had no reason or inducement for absconding.  This is my learned friend’s argument, and he has conducted it with so much skill and ingenuity that he has not only succeeded in proving his case; he has proved a great deal too much.  For if it is true, as my learned friend so justly argues, that a man thus unfettered by obligations of any kind has no reason for disappearing, is it not even more true that he has no reason for not disappearing?  My friend has urged that the testator was at liberty to go where he pleased, when he pleased, and how he pleased; and that therefore there was no need for him to abscond.  I reply, if he was at liberty to go away, whither, when, and how he pleased, why do we express surprise that he has made use of his liberty?  My learned friend points out that the testator notified to nobody his intention of going away and has acquainted no one with his whereabouts; but, I ask, whom should he have notified?  He was responsible to nobody; there was no one dependent upon him; his presence or absence was the concern of nobody but himself.  If circumstances suddenly arising made it desirable that he should go abroad, why should he not go?  I say there was no reason whatever.

“My learned friend has said that the testator went away leaving his affairs to take care of themselves.  Now, gentlemen, I ask you if this can fairly be said of a man whose affairs are, as they have been for years, in the hands of a highly capable, completely trustworthy agent who is better acquainted with them than the testator himself?  Clearly it cannot.

“To conclude this part of the argument:  I submit that the circumstances of the so-called disappearance of the testator present nothing out of the ordinary.  The testator is a man of ample means, without any responsibilities to fetter his movements and has been in the constant habit of travelling, often into remote and distant regions.  The mere fact that he has been absent somewhat longer than usual affords no ground whatever for the drastic proceeding of presuming his death and taking possession of his property.

“With reference to the human remains which have been mentioned in connection with the case I need say but little.  The attempt to connect them with the testator has failed completely.  You yourselves have Heard Doctor Summers state on oath that they cannot be identified as the remains of any particular person.  That would seem to dispose of them effectually.  I must remark upon a very singular point that has been raised by the learned counsel for the petitioner, which is this: