Selden's Ex'r v. Kennedy.*

• Citation: 104 Va. 826,52 S.E. 635
• Parties: SELDEN'S EX'R . v. KENNEDY.*
• Decision Date: 25 January 1906
• Court: Virginia Supreme Court

52 S.E. 635

104 Va. 826

SELDEN'S EX'R .

v.KENNEDY.^*

Supreme Court of Appeals of Virginia.

Jan. 25, 1906.

1. Constitutional Law—Due Process of Law — Deprivation of Property — Absentees.

Code 1887, § 3373 [Va. Code 1904, p. 1786], providing that if a resident absents himself from the state for seven years successively he shall be presumed to be dead in any case where his death shall come in question, unless proof be made that he was alive within that time, if construed, in connection with section 2639 of the Code [Va. Code 1904, p. 1352], which provides for the granting of letters of administration on a decedent's estate, so as to authorize the administration of an absentee's property during his lifetime, without his knowledge or consent, and in a proceeding to which he is not a party and of which he has no notice, is repugnant to to Const. U. S. Amend. 14, declaring that no state shall deprive any person of property without due process of law.

2. Equity—Laches—Grounds of Bar.

Whether lapse of time is sufficient to bar a recovery depends upon the particular circumstances of the case, and in order to work such result the delay must be such as to afford a reasonable presumption of satisfaction or abandonment of the claim, or such as to prevent a proper defense by reason of death of parties, loss of papers, or death of witnesses.

[Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Equity, §§ 204-209.]

3. Executors — Recovery of Legacy — Laches.

Fifteen years' delay of an absentee in suing for a legacy which had been paid to an administrator for him was not such laches as to bar his right of action, where the executor, whose duty it was to pay the legacy, was still living, and no evidence had been lost by death, no records had been destroyed, and there was no uncertainty in the amount due, nor any presumption of payment.

Appeal from Law and Chancery Court of City of Norfolk.

Suit by C. E. Kennedy against C. W. Grandy, executor of William Selden, deceased. From a decree for complainant, defendant appeals. Affirmed.

Loyall & Taylor, for appellant.

Burroughs & Bro., for appellee.

BUCHANAN, J. This suit was instituted by C. E. Kennedy against C. W. Grandy, surviving executor of Dr. William Selden, deceased, to recover a legacy.

It appears that Dr. Selden, by his last will and testament, which was probated in November, 1887, bequeathed to Charles E. Kennedy the sum of $1,000. Kennedy died before the testator, leaving three children, who, under section 2523 of the Code of 1887 [Va. Code 1904, p. 1290], were entitled to the legacy. The executors paid to two of the children their portion of the legacy. Upon the 7th day of January, 1896, the corporation court of the city of Norfolk, upon proof that C. E. Kennedy, the other child, had been a resident of this state, and had since gone from and had not returned to the state, more than seven years prior to that date, adjudged, ordered, and decreed that he was and should be presumed to be dead, as declared by section 3373 of the Code of 1887 [Va. Code 1904, p. 1786], and appointed T. D. Kennedy, his brother, administrator of his estate. A few days after his appointment he collected his brother's share of the legacy from the appellant as surviving executor of Dr. Selden.

In 1904 C. E. Kennedy, who had been absent from the state for many years, made a demand upon the surviving executor for his share of the legacy; and upon his refusal to pay the same this suit was instituted, and upon a hearing of the cause, a decree was rendered against him for the sum de manded. From that decree this appeal was taken.

The first assignment of error is that the payment made by the appellant to T. D. Kennedy, as administrator of the estate of the appellee, was a valid payment, and that the trial court erred in not so deciding.

In order to sustain this contention, it will be necessary to hold that section 3373 of the Code, when considered in connection with section 2669 of the Code [Va. Code 1904, p. 1352], which provides for the granting of letters of administration when a person is dead, authorizes the appointment of an administrator of the estate of the appellee, under the facts disclosed by the record; and, if it does, that it is not in conflict with that portion of the fourteenth amendment to the Constitution of the United States, which ordains that do state shall "deprive any person of life, liberty, or property without due process of the law."

Section 3373 [page 1786] is as follows: "If any person, who shall have resided in this state, go from and do not return to the state for seven years successively, he shall be presumed to be dead in any case wherein his death shall come in question, unless proof be made that he was alive within that time."

It may well be doubted whether the Legislature intended by that section to authorize the courts to grant letters of administration upon the estate of a person who was once a resident of the state, and had been absent therefrom for more than seven years, irrespective of death. But if it be conceded that such was its intention, is not the statute in plain violation of the due process of law clause of the fourteenth amendment?

It is conceded, and if it were not it is well settled, that the grant of letters of administration on the estate of a live man, as if he were dead, is absolutely void.

In the case of Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896, the question of the validity of such letters of administration was fully discussed, the authorities, English and American, cited, and the conclusion reached that a court of probate, in the exercise of its jurisdiction over the probate of wills and the administration of estates of deceased persons, had no jurisdiction to appoint an administrator of a living person, and that the appointment of an administrator, after public notice to the next of kin, creditors and the like of the estate of a living person, who had been absent from the state more than seven years, was in violation of the due process of law clause of the fourteenth amendment to the Constitution of the United States. And there are general expressions in that opinion which would seem to indicate that a state was absolutely without power to provide by special proceeding for the...