It is to be noted in tbe beginning that while tbe jury found as a fact that Claude F. Deal is dead and that be left no child or children surviving, it is not so adjudged by tbe court below.
Strictly speaking, this is not an adversary action. It is a petition for advice and instruction in tbe administration of an estate in tbe nature *694of an in rém proceeding. Tbe plaintiff is entitled to tbe relief prayed whether Claude E. Deal is living or dead. Hence tbe motion of tbe guardian to dismiss as in ease of nonsuit was properly overruled.
When in a judicial proceeding it is necessary to ascertain as a material fact whether a person is living or dead, the fact of death may be established by circumstantial evidence.
“The absence of a person from his domicile, without being heard from by those who would be expected to hear from him if living, raises a presumption of his death' — i.e., that he is dead at the end of seven years.” Carter v. Lilley, ante, 435, and cited cases.
The mere absence of a person from a place where his relatives reside but which is not his own place of residence, without being heard from by them for a period of seven years, is not sufficient to create a presumption. 25 C. J. S., 1058-9. It is the proof of the continued and unexplained absence of a person from his home or place of residence without any intelligence from or concerning him for the required period which gives rise to the application of the rule. 16 A. J., 19; 25 C. J. S., 1057.
This rule of evidence is a procedural expedient sired by necessity and is based on the generally accepted fact that a normal person will not, if alive, remain from his home for seven years without communicating with family or friends. 16 A. J., 19.
The strength of this presumption varies with the circumstances; its force depends on the character of the person, his attachment to his home, and the circumstances under which he left. 25 C. J. S., 1056, 1061; 16 A. J., 21.
It follows that the presumption is rebuttable. Chamblee v. Bank, 211 N. C., 48, 188 S. E., 632; Clark v. Homes, 189 N. C., 703, 128 S. E., 20; Trimmer v. Gorman, 129 N. C., 161; 16 A. J., 21; 25 C. J. S., 1061.
Evidence tending to show the desire of the absent person to conceal his identity, the probability or improbability that there would have been a communication from him, that he was a fugitive from justice, or any other fact or circumstance surrounding his disappearance tending to support or rebut the presumption is admissible. 25 C. J. S., 1057; 16 A. J., 22; Anno. 44 A. L. R., 1488; 64 A. L. R., 1288.
When Deal left the community his wife left with him. Did he disappear or merely change his place of residence and establish a home elsewhere? Why did he leave? Under all the circumstances it is probable that he, if alive, would have communicated with his brothers and sisters or the trustee of the estate? These and like questions are to be considered by the jury in arriving at an answer to the first issue.
While it may be the appellant has not fully preserved his exceptions to the exclusion of tendered testimony respecting the circumstances under which Claude E. Deal left the community in which he had theretofore *695lived, tbe interests of minors are involved and tbe proper administration of a trust estate is at stake. Protection of these interests is of more importance than tbe rigid enforcement of the rule.
Tbe effect of tbe charge of tbe court on tbe second and third issues, to which exception is entered, was to place tbe burden of proof as to those issues on tbe plaintiff. In this there was error.
Tbe appellees assert tbe death of Claude E. Deal and make claim to tbe trust estate. But they have no interest in tbe estate unless be died “leaving no children alive and surviving him.” Only in that event are they tbe rightful claimants, and so tbe burden of proof rests upon them.
Furthermore, tbe proof of tbe death of Claude F. Deal raises no presumption that be died without lineal descendants. University v. Harrison, 90 N. C., 385; Warner v. R. R., 94 N. C., 250. There must be evidence of that fact to support affirmative answers to tbe second and third issues.
For tbe reasons stated there must be a
New trial.