D'Arusment v. Jones

• Decision Date: 30 April 1880
• Citation: 72 Tenn. 251
• Parties: SYLVIA D'ARUSMENT v. HENRY T. JONES et al.
• Court: Tennessee Supreme Court

72 Tenn. 251

SYLVIA D'ARUSMENT

v.HENRY T. JONES et al.

Supreme Court of Tennessee.

April Term, 1880.

FROM SHELBY.

Appeal from the Chancery Court at Memphis, R. J. MORGAN, Ch.W. M. RANDOLPH for Complainant.

HUMES & POSTON, GEORGE GILLHAM and ESTES & ELLETT for Defendants.

MCFARLAND, J., delivered the opinion of the Court.

The question in this case is the validity of an administration upon the estate of a living person.

The complainant files this bill to have satisfaction of four notes for $1,000 each, executed to her by William C. Harrison on the 15th of January, 1861, and secured by a deed of trust on a tract of land in Shelby county, which she on that day had sold and conveyed to said Harrison. She states that soon after the date of said transaction she left the State of Tennessee, and resided for several years in the States of the North, and afterwards in Europe, returning to this State shortly before the filing of this bill, April 25th, 1874. Upon her return she discovered that during her absence, to-wit, on the 10th of August, 1869, the defendant, David Whitly, had procured letters of administration upon her estate from the County Court of Shelby county, upon the pretext that she was dead, and as such administrator had filed a bill in the Chancery Court of said county against the personal representative and devisee of said Harrison (who had died) and the heir of the trustee in the deed of trust (who had also died) to have satisfaction of said notes, alleging that they had been lost or mislaid.

The cause was compromised, and a decree rendered in favor of said Whitly for $3,500, upon condition that he execute a bond with surety to indemnify the estate of said Harrison, or the devisees of said land, to the extent of said sum of $3,500, against all claims that might be set up by complainant, if alive, or by any assignee of said note. The bond was executed and the money paid. The prayer of the bill is to have satisfaction of the notes out of the trust property, but that Whitly and his sureties be held liable upon his aforesaid bond to the extent of the penalty thereof, in exoneration of the land.

It is conceded that the material allegations of the bill have been established, but it is maintained that Whitly acted in good faith and with due caution upon the belief that complainant was in fact dead, a belief justified by the fact that she had been absent for more than seven years, and the most diligent inquiries among her friends and acquaintances could discover no trace of her, and it is insisted for the defendant that the administration of Whitly should be held so far valid as to constitute a protection to innocent parties who in good faith paid to him money due the complainant.

A similar case has never before arisen in this State, so far as we know. It is a question that has recently attracted some attention. Previous to the decision of the Court of Appeals of New York, in 1875, in the case of Rodrigas v. East River Savings Institution, 63 N. Y., 485, it seems not to have been doubted that such an administration would be absolutely void. Chief Justice Marshall said, such an act “all will admit is totally void:” Geffoth v. Frazier, 8 Cranch, and there are numerous dicta and several decisions to the same effect: Binson v. Ivey, 1 Yer., 306; Allen v. Dundas, 3 Term R., 125; Wilson v. Frazier, 2 Hum., 30;Jochumsen v. Savings Bank, 3 Allen, 87; Taylor on Evidence, vol. 2, secs. 1490, 1523. The case in 63 N. Y., before referred to, raises the direct question. Administration had been granted upon the estate of one who had been absent and not heard from for more than seven years, and money collected from his debtor. It turned out that he was not in fact dead, and the question was whether the payment made by the debtor was a protection against a second demand. The Judges were divided in opinion--four to three--the majority holding the payment a protection. The decision has been severely criticised by Judge Redfield in 15 Am. Law Reg. It is fair, however, to say that the opinions present that side of the question with all its force, and show that at least something may be said in its favor. The argument may be briefly stated thus: Upon proof of death, the Surrogate was compelled to act and grant administration. Proof of seven years' absence without being heard from was prima facie evidence of death which the Surrogate might be unable to rebut, and therefore he was compelled to act, and grant the letters of administration. Armed with these letters, the administrator could demand payment, and the debtor could not resist, and therefore, it being a payment compelled by law, the debtor ought to be protected, especially as it is the acts of the supposed decedent in remaining absent without communicating with his friends for more than seven years that causes the injury, and consequently he, rather than the debtor, ought to suffer.

The decision, however, was to some extent placed upon the Statutes of New York, which were assumed to be peculiar in this respect, that is to say, before administration can be granted the fact of the person's dying intestate shall be proven to the satisfaction of the Surrogate, who shall examine the person applying touching the time, place and manner of the death, and may examine any other persons, and for that purpose compel their attendance as witnesses.

While it is conceded that, in general, the finding by the Court of the fact upon which the jurisdiction depends is not conclusive of the jurisdiction, yet it is maintained that, as in this instance, the Court was required to hear evidence and determine the facts, the determination must be conclusive until revoked, so far as concerns third persons, who had acted upon the faith thereof. It does not seem clear that an administration granted under such a statute would in this respect be different from administration granted under a statute simply authorizing the granting of administration upon the estates of deceased persons, but it is unnecessary in the present case to pursue this branch of the inquiry.

The force of the argument in favor of the validity of the administration seems to apply especially to a case of this character, when the assumption of death rests upon the fact of seven years' absence without being heard from, and the hardship of requiring a debtor who has recognized an administrator appointed under such circumstances liable to a second payment, seems peculiarly pointed. It must, however, be in principle immaterial what the proof of death may be as to the effect of the judgment, whether the Court find or assume the fact of death upon proof of seven years' absence, or upon testimony of witnesses directly to the point, the question must be the same; that is to say, is the finding or assumption of the fact of death by the Probate Court conclusive until revoked by the same Court, or reversed on appeal, for we have no statute authorizing administration to be granted upon proof of seven years' absence without being heard from. It is simply a common law rule of evidence, and it has no more force than any other evidence that may turn out to be untrue. Administration granted upon such evidence is no more lawful than if granted upon false testimony of witnesses. It may be the misfortune of the parties in interest in either case that for the time being they are unable to show the real truth. In such a case there is real hardship in requiring a debtor to pay the second time, but such is always the effect of holding, as Courts are often compelled to do, that former judgments have been rendered without jurisdiction. The defendants in this case were unable to defeat the demand of Whitly, because they were, unfortunately, unable to prove the real truth. Such misfortune often occurs. The hardship to the debtor cannot be regarded greater than to hold the creditor bound by an administration of his estate in his lifetime. To deprive him of his property and rights by a proceeding of this character, to which, by no sort of construction, can he be regarded as a party, is a violation of first principles. It is said, however, that it is the fault of the supposed decedent in remaining absent for seven years without communicating with friends that gives rise to the presumption of death and causes the injury, and he ought, therefore, to be bound by his own act. The seven years' absence may be wilful, or it may be the result of insanity, imprisonment, or other misfortune. The failure of friends and acquaintances to be informed as to the residence of the absent one, or that he still lives, may be the result of accident, or other cause. In what cases the conduct of a person in remaining absent and conniving at the acts of a pretended administrator should be held fraudulent and an estoppel, it is unnecessary to inquire, as such is not the present case. Whitly, to whom administration was granted as next of kin, turns out to be in nowise related to complainant, and she could not have anticipated such a proceeding, or be held to have connived at it by remaining absent. A debtor, in a case like the present, could always obtain the indemnity which in this case was obtained, by applying to a Court of Chancery, that is a bond of indemnity against the contingency of the creditor returning alive, an indemnity that, perhaps ought to be provided by statute, and there could be no more hardship in requiring the debtor to look to such a bond for indemnity than in requiring the creditor to do so. The money, when thus paid, should be recovered back, either by the debtor who has paid it, or by the creditor who returns alive, and if the security of the bond fail, it would be as great a hardship, to say the least of it, to require the creditor to lose it as to throw the loss upon the debtor. Therefore the question of hardship is out of the way, and the fact that the administration was granted upon the proof of seven years' absence forms no exception to the...