Devlin v. Commonwealth, to Use, &C.

• Decision Date: 20 November 1882
• Citation: 101 Pa. 273
• Parties: Devlin <I>versus</I> Commonwealth, to use, &c.
• Court: Pennsylvania Supreme Court

101 Pa. 273

Devlin versus Commonwealth, to use, &c.

Supreme Court of Pennsylvania.

October 10, 1882.

November 20, 1882.

October 10th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ.

ERROR to the Court of Common Pleas No. 2 of Allegheny county: Of October Term 1882, No. 121 C. S. Fetterman (with him E. A. Montooth and S. A. Johnston), for the plaintiff in error.—The grant of letters of administration by the register is a judicial act, and until such letters be revoked, all persons acting by virtue of their authority are protected: Roderigas' Adm'rs. v. East River Savings Institution, 15 Amer. Law Register, 205; Miller v. Beates, 3 S. & R. 490. The defendants in this case could not have resisted the demand of the administrators for payment of the amount due the estate of the supposed intestate on the ground that the latter was only presumptively dead and might in fact be alive. Payment by the defendants, therefore, to the lawful administrators is a bar to a second action brought by the supposed intestate. As the law originates the presumption that a person unheard-from for more than seven years, under circumstances similar to those in the present case, is dead, and will enforce payment from debtors of the person presumed to be dead to administrators, duly appointed in recognition of such presumption, it would be highly inequitable not to protect parties so paying from all future demands for the same debt.

C. A. O'Brien (with him Breil and Fitzpatrick), for the defendant in error.—The grant of letters of administration is a judicial act only when the register has jurisdiction, and the law invests him with jurisdiction only over the estates of dead persons. The presumption of death arising from prolonged absence is a disputable one, and when overthrown by the appearance of the absentee, it leaves no ground for sustaining jurisdiction of any act based upon the presumption of death: Jochumsen v. Savings Bank, 3 Allen 87; Allen v. Dundas, 3 Term Rep. 125; Griffith v. Frazier, 8 Cranch 9; McPherson v. Cunliff, 11 S. & R. 431.

Mr. Justice GORDON delivered the opinion of the court, November 20th, 1882.

Notwithstanding the long absence of Mary B. Devlin, the plaintiff below, from the state of Pennsylvania, and although it may be, as alleged in the statement of the plaintiffs in error, that she had been unheard-of for a period of fifteen years prior to the date of the issuing of letters of administration on her estate, yet the fact turns out to be that at that time she was alive. It follows, that those who undertook to act upon the presumption of her death must bear the consequences of the failure of that presumption. Let it be that the fact of so long an absence would, in many instances, raise a legal presumption of her death, yet, we presume, no one will contend that this legal presumption might not be successfully rebutted by proof that the person whose death it was thus sought to establish, was in full life. Let us take, for example, a son, under circumstances like those above stated, assuming the death of his father, and, on that assumption, as heir, selling the father's land. Should the supposed decedent afterwards appear, the title of the son's vendee would be utterly void; yet in this hypothetical case, the sale is supposed to be made on a legal presumption, which, so long as it continues, is perfectly good, and one on which the vendor might successfully defend in an action for a breach of the warranty of title. But in the case put, the son's title breaks down just where the defence to the plaintiff's claim, in the case in hand, breaks down — that is, upon a failure of the presumption upon which the parties acted. Presumptively the son had power to sell, in fact he had no such power; presumptively the register had power to issue letters of administration on the estate of Mary B. Devlin, but in fact he had no such power. We cannot, therefore, but approve of what was so well said by the learned judge of the court below, i. e., that the presumption interposed by the defendants to defeat the plaintiff's recovery was not even an important element in the case; it was but evidence from which the register might assume the death of Mary B. Devlin, but it was no more conclusive than would have been the testimony of false witnesses to prove the same thing.

It might, indeed, be true, that were we to concede to the register judicial powers of a general character, as was conceded to the surrogate of the State of New York, in the case of Roderigas v. The East River Savings Bank, 63 N. Y. 460, the decree in the case in hand might be regarded as conclusive until reversed; but we are not disposed to regard this case as authority; its standing as such is not only very much weakened by the dissent of three of the seven judges who composed the court, but, as was said by Judge REDFIELD, in his note to this case, 15 Am. L. R. (N. S.) 212, the case is perhaps without precedent either in America or England.

But whatever may be the...