“My learned friend points out that these remains were discovered near Eltham and near Woodford and that the testator was last seen alive at one of these two places.  This he considers for some reason to be a highly significant fact.  But I cannot agree with him.  If the testator had been last seen alive at Woodford and the remains had been found at Woodford, or if he had disappeared from Eltham and the remains had been found at Eltham, that would have had some significance.  But he can only have been last seen at one of the places, whereas the remains have been found at both places.  Here again my learned friend seems to have proved too much.”

“But I need not occupy your time further.  I repeat that, in order to justify us in presuming the death of the testator, clear and positive evidence would be necessary.  That no such evidence has been brought forward.  Accordingly, seeing that the testator may return at any time and is entitled to find his property intact, I shall ask you for a verdict that will secure to him this measure of ordinary justice.”

At the conclusion of Mr. Heath’s speech the judge, as if awakening from a refreshing nap, opened his eyes; and uncommonly shrewd, intelligent eyes they were, when the expressive eyelids were duly tucked up out of the way.  He commenced by reading over a part of the will and certain notes—­which he appeared to have made in some miraculous fashion with his eyes shut—­and then proceeded to review the evidence and the counsels’ arguments for the instruction of the jury.

“Before considering the evidence which you have heard, gentlemen,” he said, “it will be well for me to say a few words to you on the general legal aspects of the case which is occupying our attention.”

“If a person goes abroad or disappears from his home and his ordinary places of resort and is absent for a long period of time, the presumption of death arises at the expiration of seven years from the date on which he was last heard of.  That is to say, that the total disappearance of an individual for seven years constitutes presumptive evidence that the said individual is dead; and the presumption can be set aside only by the production of evidence that he was alive at some time within that period of seven years.  But if, on the other hand, it is sought to presume the death of a person who has been absent for a shorter period than seven years, it is necessary to produce such evidence as shall make it highly probable that the said person is dead.  Of course, presumption implies supposition as opposed to actual demonstration; but, nevertheless, the evidence in such a case must be of a kind that tends to create a very strong belief that death has occurred; and I need hardly say that the shorter the period of absence, the more convincing must be the evidence.

“In the present case, the testator, John Bellingham, has been absent somewhat under two years.  This is a relatively short period, and in itself gives rise to no presumption of death.  Nevertheless, death has been presumed in a case where the period of absence was even shorter and the insurance recovered; but here the evidence supporting the belief in the occurrence of death was exceedingly weighty.