Grand Lodge A. O. U. W. v. Miller

The presumptions are all in favor of the survivorship of the husband in such a case as this. I think the statute is pretty plain upon that. The California statute is but an expression of the law as it existed in the Roman law and the civil law. We will look at the statute for a moment-section 1963, subdivision 40, of the Code of Civil Procedure :

“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: ....

*324 Now, is there any evidence to rebut these presumptions?

There is something in the evidence here about the wife’s hair turning gray. The argument from which, I understand, is that that is an evidence of survivorship., because the hair must have turned gray by sheer fright or suffering on account of the calamity, fright and suffering being suggestions of vitality.

On the other hand, there is also evidence here that there had been a solution used on the wife’s hair to restore the original color and to…