Lavin v. Emigrant Industrial Sav. Bank

Decision Date01 April 1880
PartiesLAVIN v. THE EMIGRANT INDUSTRIAL SAVINGS BANK.
CourtU.S. District Court — Southern District of New York

E. D McCarthy, for plaintiff.

J. E Devlin, for defendant.

CHOATE J.

In this case a jury trial has been waived. The plaintiff, an alien sues to recover the sum of $400 deposited by him with the defendant, an incorporated savings bank doing business in New York city, with the accumulated interest. The answer admits the deposit by one John Lavin of $300 on the eighteenth day of July, 1865, and of $100 on the thirteenth day of January 1866. It sets up as a defence that on the fourteenth day of February, 1877, one John M. Brennan made application to the surrogate of the city and county of New York for letters of administration upon the estate of the said John Lavin, and that thereupon the said surrogate decided upon such application that the said John Lavin was deceased and had died intestate, leaving assets within said city and county, and thereupon appointed John M. Brennan administrator, and issued to the said John M. Brennan letters of administration of the goods, etc., whereof the said Lavin died possessed in the state of New York; that thereafter, and while said decision of the surrogate was in full force and unreversed, said Brennan presented his said letters to the defendant and demanded, as administrator of John Lavin, the said amount deposited, with accrued interest, and the defendant thereupon paid the same to him.

The answer denies that it was the plaintiff who made these deposits, but his identity was fully established by the evidence, and the only question to be determined is that raised by the fact of payment of the deposit to Brennan.

Upon the trial the following facts appeared: The plaintiff was born in Ireland, and came to this country about the year 1859, and soon thereafter he became domiciled at the town of Cranston, Rhode Island, where he remained till after he made these deposits, except that he was temporarily absent for about two years, while in the service of the government, at Hilton Head. After making these deposits he returned to Cranston and remained there about a year, when he went to California. He left in charge of a friend in Cranston a trunk containing some personal effects, including his savings bank pass-book. When he went away he expressed the intention of returning in five years. In California he married, and lived with his wife and children for a number of years, and in April, 1879, he returned to Rhode Island, where he was living when this action was commenced.

After he left for California, and until his return to Rhode Island, in 1879, he had no communication whatever with any person in Rhode Island or elsewhere in the eastern states, or in New York, and no one in any of these states, so far as appears, was aware during all this time of his whereabouts, or whether he was alive or dead. By the laws of Rhode Island it is enacted that 'if any person shall be absent from this state for the term of three years, without due proof of his being alive, administration may be granted upon such person's estate as if he were dead. ' The same statute also provides that in case such person returns into the state the administrator shall account with and pay over to him any assets remaining in his hands, and also account for what he has disposed of under his trust. Under this statute application was made in 1877, after the plaintiff had been absent about 10 years, to the court of probate of the town of Cranston, county of Providence, and state of Rhode Island, for letters of administration upon the real and personal estate of the plaintiff.

Letters of administration were accordingly issued, bearing date the twenty-fifth day of January, 1877, to John M. Brennan, in the following form: 'You having been appointed by this court administrator on the real and personal estate of John Lavin, absent from the state without due proof of his being alive, late of the town of Cranston, and having given bond as the law directs, are hereby authorized and empowered to receive, recover and take possession of all and whatsoever real and personal estate which to the said John Lavin doth appertain and belong, and the same fully to administer according to law. Witnesses, etc. ' On the fourteenth of February, 1877, John M. Brennan applied to the surrogate of New York for ancillary letters of administration. Upon this application he presented his Rhode Island letters, duly authenticated, and also his own affidavit, 'that to the best of deponent's information and belief the said John Lavin is dead.'

The petition of John M. Brennan to the surrogate states that 'your petitioner is a resident of Providence, etc., and is the administrator duly appointed by the probate court of the town of Cranston, county of Providence, Rhode Island, of the personal estate of the said John Lavin, deceased, etc. ' Upon this petition, and the affidavit and the Rhode Island letters, the surrogate of New York issued ancillary letters of administration, which are addressed to 'John M. Brennan, etc., administrator duly appointed by the probate court of the town of Cranston, etc., of the personal estate o? John Lavin, deceased;' and the letters recite that the said John Lavin is dead. Under the authority of these letters Brennan collected the money of the bank as stated in the answer.

The statute of Rhode Island permits and provides for administration on the estate of persons who leave the state and remain absent for three years. This is all that is required to be shown under the statute, before the issuing of the letters. This is all that is recited in the Rhode Island letters. They do not purport, on their face, to be letters of administration on the estate of a deceased person.

The first question to be considered is whether payment to Brennan bars the plaintiff's claim, on the ground that Brennan held the letters of administration issued by the surrogate of New York. In the case of Roderigas v. East River Savings Institution, 63 N.Y. 460, the court of appeals held that under the statutes of this state the surrogate has jurisdiction and is authorized to issue letters of administration in two cases: First, when the person whose estate is to be administered is dead; and, second, when the surrogate judicially determines that the party is dead, although, in fact, he is alive. Consequently a payment by a debtor of the supposed decedent, made in good faith, to a person to whom letters of administration had been granted by the surrogate, was held to bar the claim of the administratrix, duly appointed after the death of the party.

This decision, which was by a divided court, three of the seven judges dissenting, is based on the peculiar language of the statutes of New York, which indicated, as held by the majority of the court, an intention that, in favor of innocent third persons dealing in good faith with the person holding such letters, the decision of the surrogate upon the fact of death should be deemed conclusive as against the supposed decedent; and although the operation of the rule is admitted to work a hardship on the supposed decedent, by distributing his property while he is alive among his creditors and next of kin, yet the legislation is defended as proper, and within the principle that the legislature may protect innocent persons from loss or injury when acting in reliance upon acts of public officers, and decrees of courts proceeding with apparent authority and jurisdiction; and, as bearing on the propriety of such protective laws, the suggestion is also made that, by the voluntary and unexplained absence of the party supposed to be dead, he has by his own acts induced the decision made by the surrogate that he was dead.

In a subsequent decision in the same case (unreported) the same court held, however, that to sustain the letters of administration, where the party was alive, there must be produced to the surrogate some competent evidence of the party's death, and the surrogate must himself pass on the question judicially; and, therefore, as it appeared in that case that there was no competent proof of death produced, and that the surrogate had not himself passed judicially on the question of death, the defence of payment to the person holding such letters was overruled. The evidence of death produced in that case was the averment of the death, in the petition for the letters, upon the best of the petitioner's knowledge, information and belief; and it was found as a fact by the trial court that the surrogate never saw the petitioner, nor acted upon her petition, nor issued the letters, but that they were issued by his clerk, who used for that purpose a form signed by the surrogate in blank, which the clerk filled out and to which he affixed the seal.

In the present case the evidence offered in proof of death was the petition for letters and the affidavit of the petitioner and the Rhode Island letters. The affidavit of the petitioner is clearly subject to the objection held good by the court of appeals in their decision last above referred to. It neither states as a fact, within the knowledge of the affiant, that John Lavin was dead, nor does it state any facts from which an inference could be drawn that he was dead. It merely states, as did the petition in the case cited, that he was dead to the best of the deponent's information and belief. The Rhode Island papers contained no averment of death, but only of his absence from the state of Rhode Island, and in no way can the granting of such letters in Rhode Island be held by any implication to involve the finding of the fact of death, because the statute authorizes and expressly provides for the issuing of letters on the estate of living persons absent...

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7 cases
  • Campbell v. Coulston
    • United States
    • North Dakota Supreme Court
    • January 14, 1910
    ... ... M' Roberts, 3 Wheat ... 591; 4 L.Ed. 47; Bank of U. S. v. Mass. 6 How. 38-40; 12 ... L.Ed. 331 ... natural justice." Lavin v. Emigrant Industrial ... Savings Bank (C. C.) 18 ... ...
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    ...to the suit nor bound thereby as a privy. 96 Ark. 451; 75 Id. 1; 105 Id. 86; 96 Id. 405; 34 Id. 291; 35 Id. 62; 82 Id. 414; 80 Id. 82; 1 F. 641-643; 4 475; 74 A. 254; 110 P. 1037. There was no privy between the corporation and its receiver. 23 Enc. Law (2 ed.) 101. 2. A railroad is not liab......
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