Mr. Justice Shepard
delivered the opinion of the Court:
1. All that is certainly shown in the evidence agreed upon by the parties is, that the testatrix, Sophia Bhodes, and her son, Eugene, perished in the same disaster. There is no evidence upon which to base a judicial opinion that either survived the other; and in adjudicating the rights of those claiming under either of them the order of their deaths must be considered as judicially unascertainable.
Unlike the Boman law, and the modern laws of some •countries and States derived or adopted therefrom, the common law indulges no presumption of survivorship, whatever may have been the age, sex, or physical condition of the *22respective persons proved to have lost their lives in a common disaster. It requires evidence as the basis of its action.
It would prove a useless consumption of time to review the older cases in England involving this question; for whatever doubt may have existed by reason of certain expressions used in some of them, has been finally set at rest by the decisions in two noted cases — one by the Lord Chancellor with the aid of two common-law judges, and the other by the House of Lords. Underwood v. Wing, 4 DeG. M. & G. 633; Wing v. Angrave, 8 H. L. Cases, 183.
The American courts before which the question has come have enounced the same doctrine substantially. Coye v. Leach, 8 Metc. 371; Newell v. Nichols, 75 N. Y. 78; Cowman v. Rodgers, 73 Md. 403; Russell v. Hallett, 23 Kan. 194; Johnson v. Merithew, 80 Me. 111; Estate of Ehle, 73 Wis. 445; Smith v. Armistead, 7 Fla. 81; Paden v. Briscoe, 81 Tex. 563.
2. Admitting the rule of the common law as stated, and assuming that the order of death of mother and son in this case is unascertainable from the evidence, it has been contended that the property rights of those who claim under each decedent must be determined as if death occurred to each at the same instant. This view seems to have support in the language used in its opinions delivered in some of the American cases above cited, but we cannot accept it as logical and sound. It seems to us nothing less, in reality, than the substitution of one presumption for another — the, if anything, more unreasonable presumption of simultaneous death, for the rejected presumption of survivorship. Presumptions failing, the law requires evidence as a foundation for action upon either hypothesis. On application to the courts, there is always a burden of proof, slight though it-may often be, upon him who has the affirmative, and if he fails to discharge it with evidence reasonably sufficient for the purpose, he must suffer the consequences of failure. His opponent succeeds, not upon proof of his own case or defense, but by reason of the absence of evidence on the necessary point.
*23In our opinion, therefore, the distribution of the personal estate of which Mrs. Sophia Rhodes was possessed at the time of her death must depend upon the ascertainment of the party whose position in the case is such that he must succeed because of the failure of evidence to establish the essential fact of survivorship.
3. The claim of the Young Women’s Christian Home will first be considered.
If the will is to be construed as making the death of Eugene Rhodes, in the lifetime of his mother, a condition precedent to the taking effect of the bequest over, then it is quite clear that the burden of proving that fact is thrown upon the legatee and has not been discharged.
The question now occurs, and it is to it that the weight of the argument has been directed: Whether the will is to be so construed?
The contention on behalf of the legatee is, substantially, that the obvious intention of the testatrix was to avoid intestacy absolutely, and that the Home should take her estate not only upon the event expressly provided for, but also in case, as here shown, where her son, who was the first object of her bounty, could not possibly survive to take any practical benefit.
The argument in support of this contention prevailed with the learned justice who presided at the hearing and determined the decree rendered. It was conceded by him, as his opinion in the record shows, that, giving the words of the fourth item “ their literal meaning, it must be held that the contingency therein named has not been shown to have happened.” But he was of the opinion that the general intention of the testatrix that the Home should have the benefit of her estate, if her husband and son were not able to take beneficially, was so apparent, the will must be construed as if either of the following clauses had been inserted therein by the testatrix:— “ Or in the event that my husband and son die at the same time with me,” —• “ or in the event that my husband and son do not survive me.”
We are constrained to differ from this conclusion. It is *24undoubtedly true, that “ the intent of the testator is the cardinal rule in the construction of wills; ” but this intention must be found in the language of the will itself. Where such general intention is found, considerable latitude has been permitted in the way of rejecting the literal meaning of some words when irreconcilable with the contest, and even in supplying words to give effect to this general intention, where it is plain that the testator has incompletely espressed his apparent meaning, and it is also plain what those words are .which he must have meant to use, and yet, through negligence or ignorance, omitted. In such cases the construction is founded on the apparent condition of a contingency, or state of circumstances, present in the mind of the testator at the time, and which he has imperfectly described or provided for. But when the testator has evidently overlooked, or failed to apprehend, a particular contingency which might occur and change the course which his estate would otherwise take, the courts are not at liberty to read into- the will a clause providing for that contingency, although they might believe generally that the testator would have inserted it had attention been called to it when the will was written and executed.
This very question was involved in the case of Wing v. Underwood; 4 DeG. M. & G. 638, 654, and after careful consideration the decision was against the construction contended for. The condition upon which the bequest to Wing depended was: “ And in case my wife shall die in my lifetime, then,” etc. Husband and wife perished in the same shipwreck, and there was no proof of survivorship. Lord Chancellor Oranworth, in disposing of.the question, said:
“ The gift to Mr. Wing is in terms made dependent, and was evidently meant to be dependent, on the single event, setting aside the children, of the testator surviving his wife: If she should survive, he gives everything to her, if she dies in his lifetime he gives everything to Mr. Wing; it is impossible to say that there is any third case, or class of cases, to which the language of the will could possibly be appli*25•cable. It may be that, if the extremely improbable -event which did occur had presented itself to the testator’s mind as a possible contingency, he would have wished Mr. Wing to take his property; but then he would have done this, not by relying on the words now found in the will as being sufficient for the purpose, but by making express provision to accomplish his object.
“ It is not sufficient to say that, if for any reason the gift to the wife fails to have practical operation, the testator must have intended to benefit Mr. Wing; the answer is, he has not said so, neither expressly nor impliedly; and if I were to attempt to supply the omission I feel that I should be making, not construing, the testator’s will.”
The same question was later considered in the House of Lords in the case arising under the will of Mrs. Underwood, which gave her property to Wing also, in case her husband should die in her lifetime, and the same decision followed. Wing v. Angrave, 8 H. L. Cases, 183, 207, 215, 223. In giving his opinion, Lord Wensleydale said:
“ No one can doubt as to the testatrix’s ‘ intention,’ in the loose sense of that word. No one can suppose that she really meant not to give the property to Wing, if her husband and herself should happen to die at the same moment. No one doubts that, had she thought of such a possibility at the time she made her will, she would have provided for it by express words. But it cannot be too often repeated, that the true question in all these cases is, not what the testatrix intended to do, but what is the meaning of the words used in the will.”
In the same case, Lord Chelmsford used the following language, which seems to us directly applicable to the conditions of the case at bar:
“ In forming my judgment in this case, I have had to struggle with my strong inclination so to construe the will as to give the appellant the benefit under it, of which he has been deprived by a singular and unforeseen accident. I would gladly have found anything which either expressly or by necessary implication manifested an intention that *26he should take at all events upon the failure of the gift to Mr. Underwood.
“ But it must be conceded, that the event which has happened was so extraordinary and improbable, that it was not likely to have ocurred to the mind of any one, and, therefore, no provision for it could have been contemplated. We may, indeed, speculate with great probability, if not with certainty, 'as to what the form of bequest would have been, if the possibility of such event had been suggested; but to act upon such a speculation Avould be to make the will speak a different language for the purpose of satisfying an intention which could not have been conceived, and, therefore, could never have been meant to be expressed.”
Another omission of this will tends to illustrate the impropriety of giving it the construction founded upon what has been aptly called, “ the testatrix’s ‘ intention ’ in the loose sense of that word.” No provision is made for the contingency of Eugene Bhodes’ death leaving issue. Consequently, upon the construction contended for, if he had married and left a child surviving him, that child would be cut out. This contingency, far more likely of apprehension than the one that did happen, was no more present in the mind of the testatrix than was the other. And there is nothing in the will or the circumstances surrounding the parties, that would justify any other conception than that had it occurred to her she would have provided for it by apt words for the purpose
The case of Newell v. Nichols, 75 N. Y. 78, which is the authority most strongly relied on by the appellee, appears to us to be distinguishable.
The will vested the entire estate in trustees for the purpose of raising certain specified funds. The interest upon one fund was directed to be paid to a daughter during her life, with remainder to the heirs of her body, if then living. In default of heirs of her body living at the time of her death, she had the power to- appoint by Avill to whom she pleased. In default of said heirs living at the time of her death, or of the exercise of the power, the remainder was to the *27heirs of the heirs of the body of the testatrix, then living, and in default of these, over to the heirs of Frederick Eidgway and others. A like fund was to be raised for the benefit of her son upon corresponding limitations. A third fund was to be raised for the benefit of her husband during his life, with remainder to the heirs of testatrix’s body then living, and in default of such heirs living at the time of her death, then over to Eidgway and others also. After the death of testatrix, her husband and mother, and the two children who were under the age of ten years, were lost in the wreck of the steamship “ Schiller,” and there was no evidence from which survivorship could be ascertained. It was held, that the property had never vested in the children under the will, but the title had remained in the trustees until their death — the trust being valid and active, title was necessary to its execution; that the remainder over was a conditional limitation and not a condition precedent; and that the intent of the will was that it should be effectual if for any reason the children could not take. Following Wing v. Angrave, in respect of the doctrine of presumption, it was held that the appellants, who claimed under the two children, were charged with the burden of proving their title to some specific share or interest, and were not aided by their alternative claims. It was said by Chief Justice Church, who delivered the opinion of the court: “ As to the daughter’s share there was a failure to prove a title because it does not appear that the son survived the daughter, and the same is true of the share of the son.”
The court also, incidentally, recognized 'the distinction between the will of Mrs. Eidgway and that of Mrs. Underwood, by agreeing that the survivorship of the latter was a condition precedent to the taking of an interest by Wing.
In the next case relied on, the will is very different from the one under consideration. Robison v. Portland Orphan Asylum, 123 U. S. 702. From the terms of the will in that case, it was plain that the widow of the testator was intended to take an interest for life and nothing more, and that the testator wished to avoid intestacy in any event. But no *28distinct words were read into the will to effectuate the aforesaid intention. The words, “ at their death,” which described the commencement of the gift over to the defendants, were reconciled with this plain intention, by -taking them as indicating only the expectation of the tesjtator, which he naturally indulged, that the beneficiaries named would not live to receive the gift intended, and not as requiring that the gift shall take effect at that time irrespective of the prior decease of the widow.
The final conclusion was stated as follows: “ The limitations in the two subdivisions of the will are to be taken in connection with each other as a complete disposition in the mind of the testator of his estate, giving to the widow an estate for life, with an estate over for life to Ann Smith and Eleanora C. Robinson, contingent upon one or the other of them surviving the widow, with the ultimate remainder tc the defendants.”
4. Having disposed of the claim of the Young Women’s Christian Home, the next question for consideration is: Upon whom lies the burden of proof as between the next ¡of kin of Sophia Rhodes and the administrator of Eugene Rhodes ?
One contention is, that the prima facie right is in the next of kin of the mother, whose estate is to be distributed, and that the burden of proof rests upon the representative of the son to displace them by showing his survival. This proposition has support in a number of decisions, some of which seem to be directly in point, while others are more or less analogous. Coye v. Leach, 8 Metc. 371; Johnson v. Merithew, 80 Me. 111; Russell v. Hallett, 23 Kan. 194; In re Greens Settlement, L. R. 1 Eq. 288; In re Phene’s Trust, L. R. 5 Ch. App. 139.
On the other hand, the contention is, that upon the death of the mother descent was immediately east upon the teonl, and, therefore, the burden lies upon the next of kin of the mother to show the prior decease of the son; in other words, that it is incumbent upon them to show the 'extinction of the intervening, preferential right of the son’s representatives.
*29The argument in support of this contention is founded upon the supposed analogy to the rule that prevails, in this jurisdiction, in actions of ejectment, which is: That the burden is upon the plaintiff to show not only his descent from some common ancestor with the person last legally seised,, but also the extinction of all lines of descent that could take in preference. Posey v. Hanson, 10 App. D. C. 496, 505, and cases cited. See, also, Skinner v. Fulton, 39 Ill. 485, 495; Emerson v. White, 29 N. H. 482, 492; Bates v. Schraeder, 13 Johns. 260; Stinchfield v. Emerson, 52 Me. 465; Payne v. Payne, 29 Vt. 172; Anson v. Stein, 6 Iowa, 150, 152; Delany v. Noble, 3 N. J. Eq. 441, 445. And the rule seems to be substantially the same where the action is to recover, or establish a claim to personal property. Schneider v. Piessner, 54 Ind. 524, 525; Gardner v. Kelso, 80 Ala. 497, 501; 2 Woerner Law Admn. 1234; Underwood v. Wing, 4 DeG. M. & G. 633, 655, 659. In the last case it was said: “ The next of kin stands as to personalty in the same position as the heir-at-law as to realty and the person claiming against him must make out his entire title.
“ In the absence of any effectual disposition of the beneficial interest in personalty, the next of kin is entitled to it. and the person seeking to dispossess him of it is bound to prove a perfect title, and to rebut the prima facie case of the next of kin.”
The foregoing, however, is to be taken in connection with the fact that the proof in that case showed the survival, for a brief space, of a child of Mr. Underwood; and that fact made a prima facie case for the representative of the child, which Wing was under the burden of overcoming by proving the existence of the condition upon which his title as legatee depended.
Nevertheless, the settled rule of law, as stated, governing the devolution of an estate as the legal consequence of the decease of its owner, would seem to [furnish a strong foundation for the contention of the representative of the son in the case at bar.
At the same time, it is evident that, whilst the cases last *30cited satisfactorily determine where the burden of proof lies and what is necessary to discharge its obligation, in cases where the plaintiff sues to recover the possession of property held by another under claim of title, and not as a mere trespasser or wrongdoer, none of them included in its decision the very question of this controversy: In whom vested the prima facie right upon proof of the death of the mother, regardless of the fact that the same evidence showed the death of the son in the same shipwreck ? In other words, did the mother’s next of kin take subject to displacement by proof of the son’s survival ? Or, did the son’s next of kin succeed, subject to displacement by proof of the mother’s survival ?
Laboring under some divergency of opinion, we would have great difficulty in determining upon which of these parties the burden of proof lies, had Sophia Ehodes left no will. But, as there is a will under which her estate has been so far administered, to which we may look for a solution of the difficulty, and we are agreed upon the relations of the parties created thereby, we prefer to base our conclusion upon its provisions.
5. The husband of testatrix having died before her, it will be observed that item 2 of her will gives her entire estate absolutely to her son Eugene. Then follows item 3, containing the condition precedent to the bequest over for the benefit of the Young Women’s Christian Home, and another for the husband’s life, namely: “ In the event of the death of my son Eugene Ehodes before the decease either of myself or of my husband, I then give,” etc.
The condition is then repeated distinctly in the following form in item 4: “In the event of my becoming the survivor of both my husband Oliver Wheeler 'Ehodes, and of my son Eugene Ehodes, I then give, devise,” etc.
The terms of the will, then, vesting the estate in Eugene Ehodes immediately upon testatrix’s death, we'agree that Üt raises a prima facie right in the personal representatives' off the son, and imposes the burden upon her next of kin of displacing them by proof of his mother’s survival.
*31Proof of that fact having failed, it follows that the representatives and next of kin of the son are entitled to the entire fund. The decree appealed from is, therefore, reversed, with costs to be paid out of the fund in controversy, and the cause will be remanded with direction to enter a decree in conformity with this opinion. Reversed.
An appeal to the Supreme Court of the United States was taken and perfected by the appellant Barbara Paul and the appellee, the Young Women’s Christian Home.