Beckwith v. Bates, 26.

• Decision Date: 06 October 1924
• Docket Number: No. 26.,26.
• Citation: 200 N.W. 151,228 Mich. 400
• Parties: BECKWITH v. BATES.
• Court: Michigan Supreme Court

228 Mich. 400

200 N.W. 151

BECKWITH

v.BATES.

No. 26.

Supreme Court of Michigan.

Oct. 6, 1924.

Error to Circuit Court, Lenawee County; Guy A. Miller, Judge.

Suit by Nina Wright Beckwith against Daniel W. Bates. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. J. N. Sampson, of Adrian (H. L. Larwill, of Adrian, of counsel), for appellant.

George C. Brown, of Grand Rapids, for appellee.

WIEST, J.

This case presents the question: Has the probate court jurisdiction to administer the estate of one presumed by long-time absence to be dead, but in fact alive?

Nina Wright, now Beckwith, was born in the city of Adrian, this state, and lived there until 1900, when she was 19 or 20 years of age, at which time she left, but returned in 1903 to attend the funeral of her father, and then again left the city, and for 20 years her whereabouts remained unknown to her relatives. In 1917 Mrs. Beckwith inherited from the estate of a deceased aunt the sum of $1,802.16, which was deposited with the treasurer of Lenawee county because of inability to locate Mrs. Beckwith. In 1922 Albert Wright, an uncle of Mrs. Beckwith, living in the state of Oklahoma, petitioned the probate court for the county of Lenawee for administration of Mrs. Beckwith's estate, averring--

‘that Nina Wright, late of San Francisco, of the state of California, aforesaid, departed this life, as your petitioner believes, at the time of the earthquake at San Francisco, Cal., on or about the ___ day of April, 1906, leaving no last will and testament, as your petitioner is informed and believes.’

Defendant was appointed administrator, received the money deposited with the county treasurer, distributed the same to the heirs at law, closed the estate, and received his discharge. Plaintiff, learning of her inheritance and finding her estate administered, brought this suit against the administrator to recover the money so received and distributed. In the circuit she had judgment, and defendant reviews by writ of error.

In this state we have no statute applicable to the case. It is an old and well-understood principle of law that, when a person leaves his place of residence and for 7 years and upward his whereabouts remain unknown to relatives and others most likely to know thereof, and it is not known whether such person is living or dead, the law admits of the presumption of death. But this presumption has limitations in its application to and legal effect upon property rights, and does not vest right to the property of the absentee in presumptive heirs at law, nor admit of its apportionment among them by way of distribution in the ordinary administration as of an estate of a decedent, without the aid of express legislation to that end.

Counsel for defendant call attention to the statute (C. L. 1915, § 329) relative to escheated estates:

‘If any person shall disappear and his whereabouts remain unknown for the space of seven years, and no knowledge of such person can be procured for such space of seven years, he shall be presumed to be dead, and if there are no person or persons found who would be his heir or heirs at law, if he were dead, administration shall be taken upon his estate in accordance with the provisions of this act in relation to escheated estates, and the avails of such estate shall be disposed of as provided in this act for the disposal of the avails of escheated estates,’

-and contend that this statute, taken in connection with the general law of the state governing administration of estates, conferred jurisdiction upon the probate court to grant administration upon the estate of plaintiff as one legally presumed to be dead.

This statute recognizes the well-known principle of law we have mentioned, but touches no estate where there are heirs at law, and, besides, provides that, after administration as an escheated estate, if the supposed deceased person turns up he shall have his estate or be paid the avails thereof less the expense incurred by the state. It is not necessary to go to the statute of escheated estates for the rule admitting the presumption of death, for it has long been established. This presumption, however, neither under the statute of escheated estates or of general power of administration of estates of deceased persons, admits of a disposition of the estate of a person so presumed to be dead, but in fact alive, to the presumptive heirs, or beyond return to such supposed deceased person whenever he appears, unless there is a statute of limitations expressly made applicable. The presumption of death does not arise until the expiration of 7 years, for until that period has expired the presumption is that one last heard from alive remains alive; it is but a presumption at the best, and cannot control rights to property when the party supposed dead appears and thereby destroys the presumption and all based thereon.

Counsel for defendant claim:

‘It is within the jurisdiction of probate courts to grant administration upon the estate of a person presumed to be dead, although such a person be actually living.’

This view finds support in the first edition of Woerner's American Law of Administration and cases there cited, but in subsequent editions Mr. Woerner states:

‘Administration on Estates of Living Persons.-The weight of authority is very decidedly to the effect ‘that the decease of the supposed decedent is a prerequisite to the jurisdiction of the court, and that (if still living) he is wholly unaffected by the proceedings for the settlement of his estate.’

‘The doctrine that the grant of letters testamentary, or of administration, on the estate of a person in fact living, but supposed to be dead, is an act beyond the jurisdiction of the court, and therefore so utterly void, that no person is protected in dealing with the executor or administrator, even while his letters remain unrevoked, is firmly adhered to in nearly all of the states in which the question has arisen, and seems to command the acquiescence of even text-writers.’ Woerner's American Law of Administration (3d Ed.) vol. 2, § 208.

It is very frankly said:

‘Counsel for defendant are aware that there are two diverse currents of authority upon the question of the right to grant administration upon the estate of one presumed to be dead; one line holding such appointment to be void, ab initio, if the presumed dead person be actually living; the other holding such appointment to be voidable only.’

We think the decisions on the question here involved remove all doubt and render such probate proceedings void ab initio. We cite and quote from two of the early cases and some of the late cases.

In Griffith v. Frazier, 8 Cranch, 23, 3 L. Ed. 471, Chief Justice Marshall stated:

‘Suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others, be dead or in life. * * * Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint, with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate.’

In Jochumsen v. Suffolk Savings Bank, 3 Allen (Mass.) 87, it was said:

‘It was further urged, as a ground for sustaining the appointment of the administrator, that upon the case as it existed at the time of granting letters of administration the facts would well warrant the decree making such appointment, and given jurisdiction to the court of probate. The position taken is, briefly, that seven years' absence, upon leaving one's usual home or place of business, without being heard of, authorizes the judge of probate to treat the case as though the party were dead. The error consists in this, that those facts are only presumptive evidence of death, and may always be controlled by other evidence showing that the fact was otherwise. The only jurisdiction is over the estate of the dead man. When the presumption arising from the absence of seven years...