III. Presumptions and burden of proof. 1. As to rights, contracts, instruments, and property. e. By the common law, the first will is U. S. 710, 42 L. ed. 1213, 18 Sup. Ct. Rep. presumed to be restored to its active energy 949. by the canceling of the second. Bates v. Hacking, 14 L.R.A. (N.S.) 937, 28 R. I. 523, 68 Atl. 622. § 446. Insurance. Burden of proving exception, see ante, § 119. Presumption of death of insured, see ante, § 159 f. Burden of proof as to survivorship, see As to suicide of insured, see ante, § 161 c. Burden of proving that injury was inten- Death or injury of insured generally, see Suicide of insured, see ante, § 275. 1586-1591. g. on §§ Burden of proving amount realized from sale of débris of insured property, see INSURANCE, § 197 a. See also PLEADING, §§ 294 b, 298 c. a. A policy of insurance is presumed to en brace the entire agreement of the parties. Walton v. Agricultural Ins. Co. 5 L.R.A. 677, 116 N. Y. 317, 22 N. E. 443. b. The presumption is that in the drawing of an instrument of the character and importance of an insurance policy, language is selected to express with entire accuracy and correctness the agreement of the contracting parties. Continental Casualty Co. V. Johnson, 6 L.R.A. (N.S.) 609, 74 Kan. 129, 85 Pac. 545. c. Nothing will be inferred in favor of the forfeiture of the policy by the insured. Pioneer Sav. & L. Co. v. Providence-Washington Ins. Co. 38 L.R.A. 397, 17 Wash. 175, 49 Pac. 231. f. The facts that a life insurance policy contains no limitation of the time in which an action may be brought thereon after a loss has ensued, and that such an action may be brought at any time before it is barred by a statute of limitations, do not furnish a presumption of irreparable loss so as to entitle the insurers to maintain an action to cancel the policy. Bankers Reserve Life Co. v. Omberson, 48 L.R.A. (N.S.) 265, 123 Minn. 285, 143 N. W. 735. g. A provision in an insurance policy that if a building or any part thereof fall except as a result of fire all insurance thereon shall immediately cease is not sufficiency explicit to impose on the insured the burden of proving what portion of the total loss accrued after a fire had begun before it fell. Wiig v. Girard Fire & M. Ins. Co. L.R.A.1917F, 1061, 100 Neb. 271, 159 N. W. 416. h. In an action on a policy of fire in surance providing that, in the event of a lisagreement between the parties to the contract as to the amount of loss, the same shall be ascertained by appraisers, and that the loss shall not become payable until sixty days after the notice, ascertainment, and proof of loss required in the policy have been furnished to the insurer, the urden lies upon the insured to show that he has on his part performed or offered to erform the condition as to the appraisal, Graham v. German American Ins. Co. 15 L.R.A. (N.S.) 1055, 75 Ohio St. 374, 79 V. E. 930. 447.-insurable interest. Insurable interest generally, see INSUR ANCE, II. Prejudicial error in instruction as to, see a. The finding of an accident policy fully 110 Minn. 291, 125 N. W. 264. Gardner v. d. A provision in a mutual benefit cerb. An insurance company does not, by detificate that the amount should be paided by an uninsurable risk, assume the oblay in passing upon an application presentwithin a certain time after satisfactory proof of the validity of the claim does not ligation of an insurer upon the theory that require proof of the validity of the certifi- its conduct prevents the securing of insurcate. Lyon v. United Moderns. 4 L.R.A. (N.S.) 247, 148 Cal. 470, 83 Pac. 804. e. The burden rests upon the insurer to establish facts relied upon as a defense to the claim under the policy, where destruction of the property insured has been proved § 449. - delivery of policy. or admitted and the insurer claims to be a. A life insurance policy assigned in exempt from payment because of breach writing to the wife of the insured will be of condition contained in the policy or presumed to have been delivered to her, violation of duty imposed on insured by where it is found in her possession at her law or contract. Western Assur. Co. v. J. death. Devin v. Connecticut Mut. L. Ins. H. Mohlman Co. 40 L.R.A. 561, 83 Fed. 811, Co. L.R.A.1916F, 783, Okla. 28 C. C. A. 157, certiorari denied in 168 Pac. 435. -; 158 auce elsewhere and creates a legal presump- (Annotated) 4052 EVIDENCE. 1. As to rights, contracts, instruments, and property. III. Presumptions and burden of proof. § 450.- falsity or breach of war- | ropolitan L. Ins. Co. 38 L.R.A. 297, 19 R. I. 171, 36 Atl. 9. ranties, representations, or conditions. Prejudicial error in instruction as to, see APPEAL AND ERROR, § 834 c. Burden of showing that provision for cessation of insurance in case of fall of building became operative before loss, see INSURANCE, § 262 a. a. The insurer has the burden of showing breach of warranty in the application. Acci. Indemnity Co. Manufacturers' Dorgan, 22 L.R.A. 620, 58 Fed. 945, 7 C. C. A. 581. V. b. An insurance company has the burden of proof as to the breach of a condition in a policy. Mutual L. Ins. Co. v. Wiswell, 35 L.R.A. 258, 56 Kan. 765, 44 Pac. 996. c. The burden of proof is upon the insurance company to establish the breach of a clause in an accident policy as to volundanger. to unnecessary tary exposure Smith v. Etna L. Ins. Co. 56 L.R.A. 271, 115 Iowa, 217, 88 N. W. 368. d. An insurance company which resists payment of the amount due under an insurance policy because of alleged false answers in the application has the burden of proving the answers and their falsity, and to do so should introduce the application in evidence. National Annuity Asso. v. McCall, 48 L.R.A. (N.S.) 418, 103 Ark. 201, 146 S. W. 125. i. The insurer must show that a warranty by an applicant for accident insurance, that he was in sound condition physically, when he in fact was predisposed to rupture, increased the risk of loss within the meaning of a statute providing that no warranty shall be deemed material unless Collins v. it increased the risk of loss. Casualty Co. of America, L.R.A.1916E, 1203, 224 Mass. 327, 112 N. E. 634. j. The burden of proving breach of condition of an insurance policy against misrepresentation or concealment by the insured of the true ownership of the property, or of proving that the ownership was at the time the policy was issued, or since has become, other than sole and unconditional, rests upon the insurance company, when set up in defense of an action on the policy. Houseman v. Home Ins. Co. L.R.A. 1917 A, 299, 78 W. Va. 203, 88 S. E. 1048. k. An insurer has the burden of proving the invalidity of the insurance because of additional insurance. Sweeting v. Mutual F. Ins. Co. 32 L.R.A. 570, 83 Md. 63, 34 Atl. 826. § 451. waiver or estoppel. Sufficiency of proof as to, see post, § 1588. a. A waiver by an insurance company of a forfeiture, of the policy must be both Okla. pleaded and proved. State Mut. Ins. Co. v. Green, L.R.A.1917F, 663, Pac. 105. stances. 166 Stewart v. Union Mut. L. Ins Co. 42 L.R.A. 147, 155 N. Y. 257, 49 N. E. 876, reargument denied in 155 N. Y. 698, 50 N. E. 1122. b. The waiver of a condition in an insur e. In order that statements of an applicant for a fraternal benefit certificate shall constitute a defense to an action up-ance policy may be inferred from circum on the certificate of membership or policy of insurance issued to the applicant, it is incumbent upon the association to plead and prove that the answers were made as written in the application, that they were false in some particular material to the insurance risk, and that the association those answers. acted and relied Goff v. Supreme Lodge Royal Achates, 37 L.R.A. (N.S.) 1191, 90 Neb. 578, 134 N. W. 239. upon c. An insurer having made no demand for the arbitration of a loss must be presumed to have waived that right. Hutchinson v. Liverpool & L. & G. Ins. Co. 10 L.R.A. 558, 153 Mass. 143, 26 N. E. 439. § 452. - reinstatement. a. The holder of a benefit certificate who f. Preliminary evidence is not necessary relies for recovery on the fact that the of the truth of warranties in an applica-member, who had forfeited his certificate tion for life insurance, in a suit on the policy. O'Rourke v. John Hancock Mut. L. Ins. Co. 57 L.R.A. 496, 23 R. I. 457, 50 Atl. 834. g. The declaration of his age, made by an applicant for membership in a beneficial society, to whom a certificate is issued, and by whom payments are made for a series of years, will be presumed correct until the contrary is proved. Supreme Council of Golden Star Fraternity v. Conklin, 41 L.R.A. 449, 60 N. J. L. 565, 38 Atl. 659. for nonpayment of dues, had been rein- § 453. - extent of recovery. burden of showing that the h. The burden of proving the truth of answers by an applicant for life insurance, which are by the contract made warranties, rests upon the one seeking to recover on b. In an action at law upon a mutual the policy, although the burden may be lifted as to matters which only effect the benefit certificate which entitled claimant right of action, by the presumption in favor to an amount equal to one full assessment of honesty and against fraud until some- upon all members in good standing in the thing appears to rebut it. Sweeney v. Met-fraternity, not to exceed a certain amount, III. Presumptions and burden of proof. 1. As to rights, contracts, instruments, and property. the insurer has the burden of showing that of the incorporation, transferred their an assessment would not produce the rights to the corporation, and since then amount named, to defeat a recovery of that have enjoyed the use of the water as stockamount. Krogh v. Modern Brotherhood, holders until this diversion by the defend45 L.R.A. (N.S.) 404, 153 Wis. 397, 141 N. ant. Herriman Irrig. Co. v. Butterfield W. 276. Min. Co. 51 L.R.A. 930, 19 Utah, 453, 57 Pac. 537. § 454. Water rights. 486 f. a. § Presumption and burden of proof as to navigability, see post, § 538. Sufficiency of evidence as to, see post, 1496. a. The burden of showing the existence of an underground stream of water is upon the one asserting the right to its use. Barclay v. Abraham, 64 L.R.A. 255, 121 Iowa, 619, 96 N. W. 1080. b. There is a presumption that subter. ranean waters are percolating waters until it is shown that they are supplied by a definite, flowing stream. Huber v. Merkel, 62 L.R.A. 589, 117 Wis. 355, 94 N. W. 354. e. All subterranean waters are presumed to be percolating waters, until it is shown that they exist in a known and well-defined channel. Pence v. Carney, 6 L.R.A. (N.S.) 266, 58 W. Va. 296, 52 S. E. 702. d. Subsurface waters will be presumed to come from ordinary percolations, in the absence of averment or proof, as the case may be, that they are supplied by a defined, channeled, flowing stream. Shahan V. Brown, 43 L.R.A. (N.S.) 792, 179 Ala. 425, 60 So. 891. in a suit to restrain the draining of suri. Complainant has the burden of proof face water over complainant's lands out of its natural course, if defendant denies all intention to do so; and if such burden is not sustained complainant cannot have a decree in his favor. Lambert v. Alcorn, 21 L.R.A. 611, 144 Ill. 313, 33 N. E. 53. j. The fact that water which had been brought onto property for purposes of irrigation had been devoted to other uses for. a period of eleven years, and had been made the subject of conveyance, rebuts a presumption of abandonment. Miller V. Wheeler, 23 L.R.A. (N.S.) 1065, 54 Wash. 429, 103 Pac. 641. k. The burden of showing abandonment of water which has been brought on land for the purpose of irrigation, which rests upon one claiming a right thereto resting upon the fact of abandonment, is not shifted by the fact that the surplus was allowed to run into a natural water course. Miller v. Wheeler, 23 L.R.A. (N.S.) 1065, 54 Wash. 429, 103 Pac. 641. 1. An appropriation of water from a stream by a corporation organized to furnish a public water supply is presumed to be permanent. Wagner v. Purity Water Co. L.R.A.1916E, 981, 241 Pa. 328, 88 Atl. 484. § 455. Capital stock; subscription to stock. Value of, see ante, § 394 a. e. Waters coming to the surface of the ground will be presumed to be formed by ordinary percolations of water in the soil, a. A holder of stock in a building and unless it appears that they are supplied by loan association who claims priority in a definite flowing stream. Tampa Water-payment because of acceptance of a notice works Co. v. Cline, 33 L.R.A. 376, 37 Fla. of withdrawal of his stock before the cor586, 20 So. 780. poration became insolvent has the burden of showing that his right became fixed before the insolvency occurred. Pacific Coast Sav. Soc. v. Sturdevant, 49 L.R.A. (N.S.) 1142, 165 Cal. 687, 133 Pac. 485. f. One seeking to appropriate the flood water of a stream as against the right of owners of water-bearing strata connected with the stream has the burden of showing that there is a surplus after the strata are supplied. Miller v. Bay Cities Water Co. 27 L.R.A. (N.S.) 772, 157 Cal. 256, 107 Pac. 115. b. The fact that several times the length of time required by the statute of limitations to bar an obligation on a contract to subscribe to the stock of a railroad company has elapsed since the contract was made, without any step being taken to perfect the subscription, may be considered in support of the presumption raised by other facts in the case, that the obligation to subscribe for the stock has been terminated. Quinlan v. Green County, 19 L.R.A. (N.S.) 849, 157 Fed. 33, 84 C. C. A. 537. g. The burden of proving that the quantity of water diverted by defendant from a creek does not exceed that discharged into the creek from tunnels on its property, is upon the defendant in an action to enjoin the use of the water, when the plaintiff makes a prima facie case. Herriman Irrig. Co. v. Butterfield Min. Co. 51 L.R.A. 930, 19 Utah, 453, 57 Pac. 537. h. The burden of proving the quantity 8 456. Patent. of water diverted by defendant from the a. From the issuance of a patent a legal channel of a creek is upon the defendant in presumption arises that it is valid. Kryp an action to enjoin the use of the water, tok Co. v. Stead Lens Co. 39 L.R.A. (N.S.) when the plaintiff shows that its stock-1, 190 Fed. 767, 111 C. C. A. 495. holders many years before appropriated all § 457. Gift or advancement. the waters of the creek for irrigating pur- Gift in fraud of creditor, see ante, §§ 231poses, continued their use up to the time 233. III. Presumptions and burden of proof. 1. As to rights, contracts, instruments, and property. b. If a husband buys and pays for land, Undue influence in procuring, see ante, $8 and takes a deed in his wife's name, a pre 235, 236. Deed as, see ante, § 435 a. Evidence in rebuttal, see post, § 1355 e, f. See also post, § 831 e; GIFT, § 1i, j; TRUSTS, a. The rule with respect to the presump tion of validity and the burden of proof in cases of wills and testaments does not apply to cases of gifts or contracts inter vivos. Smith v. Smitn, 35 L.R.A. (N.S.) 944, 84 Kan. 242, 114 Pac. 245. b. Where a man pays for land and causes it to be conveyed to his wife or child, the presumption is that it was intended as an advancement or gift. Wright v. Wright, 26 L.R.A. (N.S.) 161, 242 III. 71, 89 N. E. 789. c. The presumption that a sum of money given is an advancement, obtains only be. tween those who occupy the relation of parent and child relations kindred thereto. Dougherty v. Rogers, 3 L.R.A. or sumption arises that he intends to make an absolute gift to her; and in order to overcome this presumption, he must show something which raises an obligation in her to hold the property in trust for him. Vickers v. Vickers, 24 L.R.A. (N.S.) 1043, 133 Ga. 383, 65 S. E. 885. § 460.acceptance of. beneficial to him is presumed until it is renounced. mortis b. Acceptance of a gift causa which is beneficial to the donee and imposes no burdens upon him, will be presumed as matter of law. Varley v. Sims, 8 L.R.A. (N.S.) 828, 100 Minn. 331, 111 N. W. 269. § 461. Trust. Ownership of trust fund, see post, § 466. Presumption that trustee purchasing title 847, 119 Ind. 254. 20 N. E 779. d. A conveyance by makes purchase in aid of trust, see a father to his daughter will not be presumed to have been See also TRUSTS, § 107 e. TRUSTS, § 94 b. a gift, so as to bring the case within a statute concerning inheritance of property acquired by gift of an ancestor. Shellenberger v. Ransom, 10 L.R.A. 810. 31 Neb. 61, 47 N. W. 700. e. One to whom delivery is made of a check on a bank, intended as a gift causa mortis to a third person, is presumed, in the absence of a contrary showing, to be the agent or trustee of the donee. Varley v. Sims, 8 L.R.A. (N.S.) 828, 100 Minn. 331, 111 N. W. 269. a. The burden of proving that there are no negative provisions in a trust agreement, qualifying the apparent right of a holder of certificates to have a transfer made to him upon the books, does not rest upon him, where they are made in terms transferable on the books of the trustees. Rice v. Rockefeller, 17 L.R.A. 237, 134 N. Y. 174, 31 N. E. 907. b. The burden is upon a cestui que trust seeking a preference over general creditors f. The presumption is that gifts made of an insolvent trustee to show that the during the donor's last illness and when all trust money did in fact increase the estate hope of recovery was gone are causa mortis. out of which he seeks a preference, or Hatcher v. Buford, 27 L.R.A. 507, 60 Ark.is represented therein in some form. Lin169, 29 S. W. 641. coln Sav. Bank & S. D. Co. v. Morrison, 57 L.R.A. 885, 64 Neb. 822, 90 N. W. 905. § 462. Assignment. Presumption that money of wife invested in land in husband's name is gift, see a. As the law recognizes the assignment TRUSTS, § 46 e, g. of land warrants in blank, and authorizes a. The presumption of law is against a the holder to fill the blank with the name gift by a wife of the principal of her sep-of the person making the entry, this authorarate property to the husband; and the burity prevents any presumption that the holdden of proving it is upon him who asserts er acquired them directly from the assignit. Adoue v. Spencer, 56 L.R.A. 817, 62 ors at the dates of the assignments. ReyN. J. Eq. 782, 49 Atl. 10. nolds v. Sumner, 1 L.R.A. 327, 126 Ill. 58, 18 N. E. 334. § 459. to wife. e. Sufficiency of evidence to rebut presumption, see post, § 1565 g, h. See also ante, § 457 b; TRUSTS, § 46 f. a. A conveyance of real estate by a husband to the wife without any valuable consideration is presumed to be a gift and in the absence of evidence of a contrary intention the presumption is conclusive. Clester v. Clester, L.R.A.1915E, 648, 90 Kan. 638. 135 Pac. 996. b. The lessor in an oil and gas lease who seeks to recover against an alleged as signee of the lessee named in such lease for failure to drill wells on the lessor's land to prevent drainage of the oil therein by wells drilled on adjacent land must prove the assignment and transfer of the lease to the defendant, and that such defendant's operations on plaintiff's lands were under and by virtue of such lease. Steele v. American Oil Development Co. L.R.A.1917E, 975, 80 W. Va. 206, 92 S. E. 410. III. Presumptions and burden of proof. 1. As to rights, contracts, instruments, and property. Ownership of goods covered by bill of lad- Of money deposited as bail, see GARNISH- By assignee of judgment, see JUDGMENT, Right to possession of converted property, See also PLEADING, § 270 b; TROVER, § 3 c, d. a. In an action of trover plaintiff need not prove title, possession is sufficient. Gunzburger v. Rosenthal, 26 L.R.A. (N.S.) 840, 226 Pa. 300, 75 Atl. 418. b. The plaintiff in a replevin action must allege and prove that he is owner of the property, or has a special interest therein, that he is entitled to the immediate possession thereof and that the property is wrongfully detained by the defendant. Wails v. Farrington, 35 L.R.A. (N.S.) 1174, 27 Okla. 754, 116 Pac. 428. c. In an interplea in supplementary proceedings to determine the title to personal property in the hands of the receiver, the burden to show title thereto is upon the party making the claim. Wilson v. Chichester, 10 L.R.A. 572, 107 N. C. 386, 12 S. E. 139. d. Money deposited in the United States mail is presumed to belong to the sender until actually received by the person to whom it is sent. Masterson v. Union Bank & T. Co. L.R.A.1918A, 531, 86 Wash. 560, 150 Pac. 1126. a common carrier for shipment is presumed to be the owner, but the presumption may be overcome by evidence. Grinnell-Collins Co. v. Chicago, M. & St. P. R. Co. 26 L.R.A. (N.S.) 437, 109 Minn. 513, 124 N. W. 377. c. The presumption in the first instance is that the consignee of goods is the owner thereof and entitled to maintain an action either for damages sustained or for loss of the property by the carrier. Pratt v. Northern Pacific Exp. Co. 10 L.R.A. (N.S.) 499, 13 Idaho, 373, 90 Pac. 341. d. A carrier assumes the burden of proving the ownership when he makes a delivery of property shipped contrary to or without the orders of the shipper. Abasi Bros. v. Louisville & N. R. Co. L.R.A. 1918B, 652, 115 Miss. 803, 76 So. 665. e. To justify a delivery by a carrier to the true owner, contrary to or without the orders of the shipper, the carrier assumes the burden of proving the ownership at the time of such delivery. Wolfe v. Missouri P. R. Co. 3 L.R.A. 539, 97 Mo. 473, 1 S. W. $49. § 465. Husband and wife. Conveyances in fraud of wife, see ante, § 234. Presumption as to continuance of character Gift to husband, see ante, § 458. That funds for paying taxes on separate a. The presumption that money in bank and notes and other securities owned, by a married man at the time of his death were community property is overcome by proof that they were the proceeds of land owned by him at the time of his marriage, and of the crops raised thereon. Re Pepper, 31 L.R.A. (N.S.) 1092, 158 Cal. 619, 112 Pac. 62. b. Where husband and wife accumulate e. A purchaser of property under an im- property by their joint efforts, and invest plied warranty of title who, without the it in the name of one of them, there is no coercion of judicial process, surrenders the presumption arising from their station in property to one making a claim of title life that they intended it to be a common paramount and superior to that of his hoard, in which both should be equally vendor, has the burden of establishing, in interested. Beck v. Beck, 35 L.R.A. (N.S.) an action for breach of warranty of title, 712, 78 N. J. Eq. 544, 80 Atl. 550. the validity of such adverse claim. Jordan v. Van Duzee, L.R.A.1918B, 1136, 139 Minn. 103, 165 N. W. 877. (Annotated) § 464. Of property transported by carrier. See also TROVER, § 13 a. a. The presumption is that the consignee named in the bill of lading is the owner of the goods. Weyand v. Atchison, T. & S. F. R. Co. 1 L.Ř.A. 650, 75 Iowa, 573, 39 N. W. 899. b. The consignee of property delivered to (Annotated) c. A loan by a married woman to a firm of which her husband is a member, in the absence of any evidence as to its source further than that the loan was made, will be presumed to have come from her separate estate, where the statute provides that a woman's property shall, upon her marriage, remain her separate estate, and that she may receive property in the same manner as if she were sole. James v. Gray, 1 L.R.A. (N.S.) 321, 131 Fed. 401, 65 C. C. A. 385. |