(after stating the facts). The evidence shows that W. R. Fischer and J. E. Fischer were riding together in a buggy late in the evening on the i8th day of January, 1918, and were shot from ambush and instantly killed. Their bodies were found the next morning lying in-the frozen ground and numerous charges of buckshot appeared to have been fired into their bodies. There is nothing whatever in the proof to indicate which one died first. It is well settled at common law that when two or more persons perish in the same disaster and there is no fact or circumstance tending to prove which survived the other, there is no presumption whatever on the subject. *211The law treats the case as one to be established by evidence, and, in the absence of proof tending to show which one died first, all will be considered to have perished at the same moment, not because that fact is presumed, but because from failure to prove it, the actual survivorship is unascertainable, the property -rights must be settled as if death occurred to all at the same time. 8 R. C. L., p. 716; Young Women’s Christian Home v. French, 187 U. S. 401; Greeleaf on Evidence (16 Ed.), vol. 1; sec. 30, p. 126; Lawson’s Law of Presumptive Evidence, p. 298; United States Casualty Co. v. Kacer (Mo.), 92 Am. St. Repts. 641; Re Maria H. Wilbor (R.I.), 51 L. R. A. 863, and note; and St. John v. Andrews Institute for Girls (N. Y.), 14 Ann. Cas. 708.
The rule that there is no presumption of survivor-ship in a common disaster applies where the insured and beneficiary died in a common disaster. 14 R. C. L., p. 1380. In the absence of any presumption as to which died first, the law requires evidence as a foundation for action in the matter. The burden of proof is always upon him who has the affirmative, and if he fails to discharge it with evidence legally sufficient for the purpose, he must suffer defeat. The adversary party succeeds, not upon proof of his own case, but by reason of the absence of evidence on the part of him who has the burden of proof. The authorities are divided upon the question of where the burden of proof lies in cases like this. In. some of the cases it is held that the contract in policies like the one in the present case is made conditional on the beneficiary surviving and that there being no presumption in case of death from a common disaster that the beneficiary has survived the insured, the burden of proof is upon the representatives of the beneficiary because the conditional benefit becomes absolute only upon proof of actual survivorship. Middeke v. Balder (Ill;.), 92 Am. St. Repts. 284, and Males v. Sovereign Camp Woodmen of the World (Texas), 70 S. W. 108. Other cases hold that the result is the same as though the insured died first, on the theory that the beneficiary did not *212die in the lifetime of the insured. Cowan v. Rogers (Md.), 10 L. R. A. 550; United States Casualty Co. v. Kacer (Mo.), 92 Am. St. Repts. 641, and Faul v. Hulick, 18 Appeal Cases District of Columbia, p. 9.
We think the latter rule is more in accord with the trend of our decisions. It is true that in Franklin Life Insurance Co. v. Galligan, 71 Ark. 295, and other cases, the court held that the contract of insurance measures the rights of one and the obligations of the other party, and that the insured may change the beneficiary when he is authorized to do so by the policy itself.
It is insisted by counsel for the appellant that these cases are authority for their position that the burden of proof is upon appellee in the present case because they hold that the beneficiary has no vested interest in the policy. It by no means follows that, because the beneficiary has no vested interest, the burden of proof should be cast upon him. In the case of Sovereign Camp W. O. W. v. Israel, 117 Ark. 121, the court quoted with approval the following:
“It cannot be said that the beneficiary named in a certificate has no rights therein because he has no vested rights. The beneficiary has a right to the proceeds of the certificate of insurance, subject to the right of the member to change the beneficiary according to the terms of the by-laws and regulations of the society, which are a part of the contract of insurance; and the right of the beneficiary to have this contract carried out in the manner provided for is as binding upon the member as his right to change the beneficiary is binding upon the beneficiary and the society. The power reserved to the member to change the beneficiary qualifies the right of the beneficiary in the contract. It makes the interest of the beneficiary a mere expectancy while the power to revoke the appointment continues; but this expectancy becomes an absolute right upon the death of the member, unless he has in the manner prescribed defeated it by the affirmative act of changing the beneficiary.”
*213It is not claimed that the insured changed the beneficiary during his lifetime. Indeed the statement of facts show the contrary to be true. We have copied in it the clause of the policy with reference to a change of the beneficiaries and it need not be repeated here. In it the insured reserved in the contract of insurance the power of substitution of beneficiaries, but did not exercise it. The policy provides, that upon change of beneficiaries upon application of the insured, the same shall take effect upon the indorsement thereof in the policy of the company. The policy was introduced in evidence, and does not show any change of beneficiaries in accordance with this provision. The clause relied on, therefore, is the following: “If any beneficiary shall die before the insured, that the interest of such beneficiary shall vest in the insured. ’ ’ This provided for a substituted beneficiary in case of the death of the primary one. The beneficiary, therefore, had a qualified interest in the policy, and his death in the lifetime of the insured is therefore a condition which must exist and must be shown to exist before the right of any subsequent beneficiary can be asserted. J. E. Fischer was the beneficiary named in the policy, and under its terms his representative had a prima facie title to the fund. In this case by the terms of the policy itself the substituted beneficiary could only take in case the insured survived the beneficiary. It is not a case where the beneficiary takes in the event he survives the insured. The insured and the beneficiary both died in the same disaster. There is no proof as to which one died first. Until it is shown that the beneficiary died in the lifetime of the insured, we think, according to the terms of the policy of insurance, the fund is payable to the representative of the beneficiary because it is only in the event of the death of the named beneficiary in the lifetime of the insured that the heirs of the insured can take.
It follows that the decree must be affirmed.