Holmlund's Estate, In re

• Decision Date: 06 September 1962
• Citation: 232 Or. 49,374 P.2d 393
• Parties: , 99 A.L.R.2d 296 In the Matter of the ESTATE of John Wilhelm HOLMLUND, Deceased. Evert KANKKONEN, Administrator, Plaintiff, v. B. Johanna HENDRICKSON et al.; G. A. Heikkila, Finnish Consul, Administrator of Estate of Johanna Holmlund, Respondents, and State of Oregon, by and through its State Land Board, Appellant.
• Court: Oregon Supreme Court

Page 393

374 P.2d 393

232 Or. 49, 99 A.L.R.2d 296

In the Matter of the ESTATE of John Wilhelm HOLMLUND, Deceased.

Evert KANKKONEN, Administrator, Plaintiff, v. B. Johanna HENDRICKSON et al.; G. A. Heikkila, Finnish

Consul, Administrator of Estate of Johanna

Holmlund, Respondents, and

State of Oregon, by and through its State Land Board, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted May 9, 1962.

Decided Sept. 6, 1962.

Robert G. Danielson, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

G. A. Heikkila, Portland, argued the cause and filed a brief for respondents.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and GOODWIN, JJ.

ROSSMAN, Justice.

This is an appeal by the State of Oregon, acting through the agency of its State Land Board, from a decree of the circuit court which denied the state's petition for an order of escheat of the estate of one John Wilhelm Holmlund who died intestate in this state September 15, 1952. The deceased had never married and left no one qualified to inherit his estate unless (1) it was his unwed mother and (2) she was living at the time of his death. The deceased's estate has a value of approximately $20,000. The defendants-respondents are Mr. G. A. Heikkila, Consular officer of the Republic of Finland for the State of Oregon and the same individual as administrator of the estate of the mother whose name is Johanna Holmlund. Both mother and son were born in Finland and both came to the United States, but not at the same time. The defendants-respondents contend that the record warrants no finding that the mother did not outlive her son and that since in the year 1952 (the year of the son's death) he and his mother were capable of being heirs of each other, the son did not die without an heir. The trial judge ruled: 'this court cannot say that any sufficient evidence has been introduced in this hearing from which this court can determine that Johanna Holmlund is dead.'

The state (appellant) claims that the evidence warrants a finding that the mother (Johanna Holmlund) is dead and that she died before her son. Such being its contention, it next says that she did not inherit her son's estate and that since she was the only person who could have qualified as an heir, the circuit court should have entered an order of escheat.

The defendants-respondents argue that the circuit court properly ruled that the evidence failed to warrant a finding that the mother is dead, and that, therefore, she and not the State of Oregon is entitled to the son's estate.

It will be noticed that Mr. Heikkila is the administrator of the mother's estate. No one can be appointed administrator of the estate of a living person and, therefore, the appointment of Mr. Heikkila was made upon a supposition that the mother was dead. The appointment was made upon the petition of Mr. Heikkila which was accompanied by a copy of an order made by a court in Finland which found that the mother died January 1, 1956. The trial judge, referring to the Finnish decree ruled: 'It is obvious from the reading of the Finnish statutes hereinbefore quoted that a clear mistake of fact or law was made by the Court * * *. Therefore the decree of the Finnish Court is void.' The defendants do not challenge that ruling. The state, referring to it, says: 'The Finnish Court, however, misapplied the law and the lower court properly so ruled.'

Hereafter, when we use the words 'the deceased' we will mean the son, John Holmlund. He was born May 25, 1896, and, as we have said, was the illegitimate son of Johanna Holmlund whose alleged death is the principal subject of inquiry. The son came to America some years after his mother but at a time undisclosed by the record. He and his mother did not correspond with each other. At the time of his death, September 15, 1952, he was a resident of Clatsop County.

Under the law of Oregon as it existed at the time of John's death in 1952, he and his mother were heirs of each other. Since the collateral kindred of his mother could not inherit directly from his mother's illegitimate issue, they could share in John's estate only if his mother inherited it, and then only to the extent that they had an interest in her estate. Since if Johanna predeceased her son she could obviously not have been his heir, it became important to determine whether she was living at the time of her son's death.

Johanna Holmlund was born October 15, 1872, in Jeppo, Finland. In 1893 she moved to Nykarleby where she was employed as a domestic servant in the home of her uncle, Johan Jacob Enrot. While thus employed she gave birth to her son John. For seven years, during which she apparently continued in her uncle's employ, Johanna kept her son with her. But in 1904, after having left him with the parents of his father, she left Finland for the United States with the intention of seeking employment. About the same time John's father came to the United States, but the evidence does not disclose the year when he came nor where he went. The facts before us do not reveal where Johanna went after she came to this country nor what she did after her arrival in the United States. If she became married or was naturalized, the fact escaped mention by any witness.

Evidence, scant in amount, indicates that Johanna corresponded with her cousin Ester (Enrot) Bergstrom, but how frequently is not shown. A letter received by Mrs. Bergstrom in approximately 1934 was apparently the last word any of Johanna's relatives or friends had from her. The letter was sent from the state of Idaho, and stated that Johanna had become a member of the Seventh-day Adventist faith. Mrs. Bergstrom testified that that letter along with any others which she had received from Johanna have since been lost.

On the basis of these facts the trial court, sitting without a jury, denied both the state's petition for an order of escheat and Mr. Heikkila's petition for a determination that the heirs of Johanna are the present heirs of John, on the grounds that there was insufficient evidence before it to enable it to determine that Johanna had died. It accordingly decreed that Johanna was the sole heir of John.

The state claims that the denial of its petition for an order of escheat was error. It argues that since Johanna was last heard from in 1934 the presumption that 'a person not heard from in seven years is dead,' ORS 41.360(26), operates to eliminate her as a possible heir. Under the presumption, if it was available, she would have died not later than 1941, eleven years before John's death in 1952. If Johanna did not inherit John's estate, it follows that her heirs also are excluded therefrom. The state, in assuming that the presumption operates, urges that since there are no further heirs John's estate must escheat to the Common School Fund.

In defense of the circuit court's decision Mr. Heikkila argues that the evidence brought by the state is not sufficient to raise the presumption of death and that therefore it must be presumed that Johanna survived John and inherited his estate.

In order to prevail the state must overcome two adverse presumptions. One of these is that the decedent left heirs or next of kin capable of inheriting property and that escheats are not favored. State Land Board v. Gennies, 204 Or. 443, 283 P.2d 655 (1955). The other is that 'a thing once proved to exist continued as long as is usual with things of that nature.' ORS 41.360(32). The latter authorizes a presumption that when a person is once shown to be alive he continues to be alive until evidence is brought which shows the contrary. Fink v. Prudential Insurance Co., 162 Or. 37, 90 P.2d 762 (1939). The burden of persuasion therefore rests upon the state to overcome the presumption of life by furnishing evidence through which an inference of death may be drawn.

To presume that a person is dead is a serious undertaking. The real value of the presumption lies in the degree of certainty which it introduces into situations where persons have not communicated with those who might reasonably expect to hear from them. We quote the following from 2 Chamberlayne on Evidence, p. 1346, sec. 1093:

'* * * The rights of persons to remarry without criminal consequences in the event that the absent spouse were not dead, the distribution of estates where an owner or life tenant had disappeared and not been heard from could not conveniently be postponed either to await evidence which might never come, or the arrival of the far distant period when the assumption of the continuance of life should be overcome by the mere lapse of time.'

The power to invoke the presumption of death is in many cases tantamount to the power to disinherit. It is capable of abuse. To prevent such abuse this court has subjected the presumption to safeguards. One safeguard which is applied in the absence of special circumstances such as, for instance, extreme old age, is that a diligent search and inquiry must precede any presumption that a missing person is dead. Reasons for this requirement are self-evident. This and other safeguards will be developed in greater detail below.

The cases reveal that a presumption of death may be raised in any one of four general situations. Perhaps the oldest of these is that of a person whose age, were he alive, would be beyond human expectation or experience. In re Katz's Estate, 135 Misc. 861, 239 N.Y.S. 722 (1930). It is generally agreed that the presumption does not arise on the basis of old age alone, short of one hundred years. 16 Am.Jur., p. 17, Sec. 13. In Drummon v. Makaena, 30 Haw. 116 (1927), the court said:

'* * * There is no presumption of law or of fact that a person who was born ninety years ago and reached maturity is now dead. The only presumption that would apply in such a case as this is the one to the contrary, that since the two men are shown to have been living...