Carr v. Brown

• Decision Date: 26 July 1897
• Citation: 20 R.I. 215,38 A. 9
• Parties: CARR v. BROWN et al.
• Court: Rhode Island Supreme Court

38 A. 9

20 R.I. 215

CARR

v. BROWN et al.

Supreme Court of Rhode Island.

July 26, 1897.

Action by Peter Carr against John A. Brown and others. Demurrer to answer of defendants sustained.

A. B. Crafts, for plaintiff.

Lewis & Potter, for defendants.

TILLINGHAST, J. This is an action of assumpsit to recover money which came to the hands of the defendants from the plaintiff's estate, which has been administered upon during his lifetime. The defendants have filed special pleas in bar, in which they set up that more than seven years before letters of administration were taken out on plaintiff's estate he had left his home in South Kingstown, where he was a domiciled inhabitant, and that during all of said time he had not been heard from, either directly or indirectly; that notice of intention to apply for letters of administration by Bridget McGuire, a sister of the plaintiff, was given for the period of three months; that further notice by publication was afterwards ordered and given by the probate court, and that thereupon, upon proof to the satisfaction of said court that notice had been given for three months as aforesaid, and also that said additional notice had been given as ordered, it was adjudged that the petition be granted; and the defendant John A. Brown was thereupon appointed administrator on the estate of the plaintiff. The pleas further set up that said Brown thereupon proceeded to administer upon said estate in the usual way; that he settled his account with the probate court; and thereupon, after three years from the time when said administration was granted, he distributed said estate according to law. Wherefore he prays judgment, etc. To these pleas the plaintiff demurs on the grounds: (1) That the proceedings in the court of probate, recited in said pleas, were and are null and void, as the plaintiff was then and now is living; (2) that to take and appropriate the estate of a living person, in the manner described in said pleas, would be to take private property without due process of law, and such a construction of the statute would be contrary to the constitution of this state; (3) that said court of probate acquired no jurisdiction of the plaintiff's personal property and estate.

The action of the probate court, and the proceedings in connection therewith, were had in pursuance of Pub. Laws R. I. 1882-85, c. 298, which is as follows: "Whenever it shall be proved to the satisfaction of the court of probate of any town that any person domiciled in such town at the time of his departure, has left his home and not been heard from directly or indirectly for the term of seven years, and that a notice of Intention to apply for letters of administration or to prove the last will and testament of such person has been published for three months in each issue of some newspaper in the city of Providence, and also in each issue of some newspaper in the county in which he was domiciled, and been posted for three months in three or more public places in said town, and that such other notice as the court may deem best has been given to the relations and heirs, the last will and testament of such person may be proved and letters of administration may be granted on such person's estate as if he were dead. The notices shall contain a brief description of such person, his age, name and such other characteristics as shall identify him, and no distribution of his estate shall be made until three years after administration has been granted under the provisions of this section." Pub. St. R. I. c. 184, § 9, which is a continuation of the same subject, is as follows: "If such person shall afterwards return to this state, or shall constitute an agent or attorney to act in his behalf, the executor or administrator as aforesaid shall be accountable for, and shall deliver to such person or his lawful agent or attorney, all the estate of every kind which shall then be in his hands as executor or administrator as aforesaid, after deducting such sum or sums as the court of probate shall allow, in the settlement of his accounts, for any payments or disbursements which he may have legally made in his said capacity, or which such court of probate may think reasonable to allow for his personal trouble in executing the trust of executor or administrator as aforesaid." Although statutes of similar import have existed in this state for more than a century, no case of this sort has ever before arisen thereunder, so far as we are aware; and we are therefore called upon to decide the question raised without the aid of former adjudications, so far as our own state is concerned. For, although said statute was before the court in Southwick v. Probate Court, 18 R. I. 402, 28 Atl. 334, yet it was only in connection with the question of the sufficiency of the notice to prove the will in question, and hence the decision in that case has no bearing upon the question as to the constitutionality of the law. It will be observed that said statute does not require the probate court to find that the person whose estate is sought to be administered is dead before proceeding to exercise jurisdiction, but only that he has been absent from his home without being heard from, directly or indirectly, for the period of seven years. This fact being made to appear, the court is given jurisdiction, after the required notice is given, to proceed as if the person were dead. The main question which is raised, then, is whether the general assembly has power to pass an act authorizing the estate of a living person to be administered upon as if he were dead. We think it is very clear, both upon reason and authority, that it does not have this power. To administer upon a person's estate while he is still living is to deprive him of property contrary to the law of the land, or, as it is ordinarily said, without due process of law; and hence is in violation of article 1, § 10, of the constitution of this state, and also of article 14 of the amendments to the constitution of the United States. What is due process of law, within the meaning of constitutional provisions like these, has been many times expounded by the supreme court of the United States, and also by the highest courts of the various states; and the result of these interpretations may be briefly summed up by saying that the words "due process of law" mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. Pennoyer v. Neff, 95 U. S. 733. Those rules require that there shall be a court of competent jurisdiction to pass upon the subject-matter of the suit or proceeding, and that there shall be a trial or proceeding in which the rights of the parties, after notice and opportunity to be heard, shall be duly adjudicated. The words "due process of law in this place, "as said in Lavin v. Bank, 18 Blatchf. 23, 1 Fed. 641, "cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title of property. It will be seen that the same measure of protection against legislative encroachment is extended to life, liberty, and property; and, if the latter can be taken without a forensic trial and judgment, there is no security for the others. If the legislature can take the property of A. and transfer it to B., they can take A. himself, and either shut him up in prison or put him to death. But none of these things can be done by mere legislation. There must be 'due process of law.'" The following terse exposition of this constitutional guaranty is furnished by the supreme court of New York in the case of Taylor v. Porter, 4 Hill, 145. Mr. Justice Bronson there says: "The words 'by the law of the land,' as here used [i. e. in the state constitution], do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the two houses, 'You shall be vested with the legislative power of the state, but no one shall be disfranchised, or deprived of any of the rights or privileges...