The living dead/Totgeglaubte kommen wieder – oder nicht

When I was browsing the legal weblog Law and the Multiverse – Superheroes, supervillains, and the law recently, I was thinking about the presumption of death, usually after seven years (see entry I’m not dead yet).

I discovered that the German statute governing this is the Verschollenheitsgesetz, passed in July 1939. Whether this was because of the approaching Second World War, I don’t know.

The Straight Dope has an entry on the legal problems when someone declared dead comes back.

The law calls people who disappear “absent” or “missing.” Professor Jeanne Carriere prefers a more dramatic term: “the living dead.” In her article, “The Rights of the Living Dead: Absent Persons in Civil Law,” published in the Louisiana Law Review, she says

The number of these “living dead” in the United States has been estimated at between 60,000 and 100,000. They create a morass of legal problems. Questions may arise concerning the security of transactions with the missing person’s estate, such as the disposition of his land, the right to proceeds of insurance policies on his life and pensions, the right to a cause of action, the necessity of providing for his dependents, the marital status of his spouse, the paternity and legitimacy of children of his spouse’s second marriage, the conservation of his property from possible waste, the devolution of succession rights that would pass to him, the release of property from a life tenancy, the requirement of his consent to certain transactions, the merchantability of land titles from his estate, and claims of inheritance from him.

Unfortunately, the article by Professor Jeanne Carriere isn’t available online for less than $29.

One famous case (1985) is that of John Burney, who escaped from financial problems and was declared dead, but then turned up again. His wife (he had a new ‘wife’ too) didn’t have to repay the insurance money, but he did.

Steve Fossett was declared dead after less than a year. Seven years is the usual period.

Amelia Earhart was declared dead eighteen months after her plane was lost over the Pacific. And lo and behold, an article in the Guardian yesterday, Finger may point to solution in Amelia Earhart disappearance riddle.

Some bones of a woman have been found on an atoll and the DNA is to be tested.

But now an array of artefacts from the 1930s and bones found on the uninhabited Pacific atoll of Nikumaroro suggest that Earhart and her navigator, Fred Noonan, endured lingering deaths as castaways on a desert island and were eventually eaten by crabs.

There are items supporting the story:

… the other discoveries lend credence to the theory that Earhart died on the atoll after going missing en route to Howland Island in July 1937 at the age of 41 – she was declared legally dead 18 months later.

They include part of a mirror from a woman’s compact, a zip from a Pennsylvania factory and travel-sized bottles made in New Jersey as well as a pocket knife listed on her aircraft’s inventory, all manufactured in the 1930s.

Alongside the goods are the remains of small fires with bird and fish bones, and empty oyster shells laid out in a row as if to collect water, suggesting someone was trying to survive on the island.

One thought on “The living dead/Totgeglaubte kommen wieder – oder nicht

  1. Preclusion of issue looks like issue vs. cause of action estoppel/res judicata, whilst Herbst’s dictionary gives ‘estoppage’ for Pr

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