Holman

(concurring). I concur in the order of affirmance. The plaintiff (appellant) predicated its right to the legacy in question upon the ground that the legatee died before the death of the testator. As I understand the law, it beeamo necessary for it to establish that fact notwithstanding the presumption of death arising from an unexplained absence for over seven years. The rule in that regard is quoted with approval by the Supreme Court from Taylor’s Treatise on the Law of Evidence (1st Ed.) § 157, as follows: “ * * * If anyone has to establish the precise period during* those seven years at which such person died he must do so by evidence, and can neither rely, on the one hand, on the presumption of death, nor on the other, upon the presumption of the continuance of life.”

This decision participated in by Justice Field, who was then a member of the Supreme Court, is at variance with his decision rendered as Circuit Judge quoted in the main opinion. Montgomery v. Bevans, 17 Fed. Cas. 628 , No. 9,735. There Judge Field held that there was. a prima facie presumption that a man who disappeared was alive at the time of the grant made to him by the alcalde at a date within the…

• From a decree denying to appellant the right of any portion of $5,000, sought as as1-signee of a claim of the residuary legatee, app ellant - seeks. reversal.

In its petition, the appellant alleges that August 10, 1923, Phillip J. Worrall, the testator, died, leaving an estate; that prior to his death- he executed his last will, by the terms of whieh lie bequeathed to his son William $5,000, and all the rest and residue of his property to his son Fred; that on August 23, 1923, the will was duly probated; that on *903 February 4, 1924, the probate court made an order that the legacy to William be paid; that he has failed to apply for it; that on April 5, 1927, Fled, as residuary legatee, for value, transferred his interest and equity accrued or to accrue, present or future, to appellant; that on May 29,1927, the probate court, after due hearing, directed the administrator with the will annexed to “deliver forthwith” to the county treasurer of the county the $5,000 legacy of the son William, pursuant to section 1303, Oregon Laws; that the sum was accordingly paid on September 12 following; that in August, 1929, the county treasurer paid tho sum to the state treasurer, who now has…