A trawl for appropriately chilly cases brought in one interesting nineteenth century dispute. Ommaney v Stilwell (1856) was a Chancery case concerning a will and the question of which of two men – Edward Couch and Captain James Couch, his father, had lived longest.
Edward was mate of the Erebus, sailing off from England in 1845 with the ill-fated expedition of Sir John Franklin to the Arctic. He made a will in 1845 leaving everything to his father. Edward was not heard of after June 1845, and, by 1856, it was assumed that he had died, with all of his fellow-explorers. Captain James Couch died in January 1850 – but should it be presumed that Edward had died before that point?
The case considered evidence of the man who went looking for Franklin’s expedition in 1853-4, Dr Rae, who gives a fascinating – and very snowy – account of his efforts.
He had traded with ‘Esquimaux’, acquiring several objects formerly belonging to men on the Franklin expedition, and being told that, in April-May 1850, the ‘Esquimaux’ had met a party of starving foreigners who said their ship had been crushed by the ice, but that in 1853, they had found the bodies of several of these men. Evidence of goose-shooting fixed the time of the demise of the party at May-June 1850. There was no mention of the apparent cannibalism Rae found from the state of the bodies.
The original expedition included around 130 men, but the party encountered alive then dead in 1850 was only around 40.
Sir John Romilly, the Master of the Rolls, exclaimed at the difficulty of the case. He made a decision, in the end, on the basis of likelihood of a strong young man surviving his father (as in the commorientes rule which still prevails under the Law of Property Act 1925). I am not sure that I would bet on someone on a doomed Arctic expedition having survived a home-based person, however old.