In re the Judicial Settlement of the Account of Sullivan , 20 N.Y. St. Rep. 911 ( 1889 )

Macomber, J.:

Letters of administration upon the estate of ¡Richard Tobin, who died in the city of ¡New York on the 23d day of January, 1884, were issued by the surrogate to the public administrator. Upon an accounting made before the surrogate by the public administrator on the 3d day of July, 1885, the administrator was directed to pay one-quarter of the estate to Michael Tobin, one-quarter to Ellen Cooke, and the residue, namely, one-half of the estate, into the city treasury for the benefit equally of John Tobin and Mary Molloy, two of the next of kin of the deceased. At that time it was not known whether either John Tobin or Mary Molloy was living. In the month of October, 1885, the other two next of kin, namely, .Michael Tobin and Ellen Cooke, to whom the money is now directed to be paid, by publishing notices in Melbourne and in Sidney, in Australia, where John Tobin and Mary Molloy had gone eighteen years previously, and by correspondence and other like acts, endeavored to ascertain whether these relatives were living, and if so where they were, and, if not, if they left descendants. Being satisfied from the evidence which they were able to - obtain that these absentees, of whom they had not heard for over seven years, were dead, they applied to the surrogate in January, 1888, for modification of the previous decree and for payment to them, as the next of kin of John Tobin and Mary Molloy, of the portion which had been originally paid into the city treasury in due course of the administration of Richard Tobin’s estate. The surrogate, however, was not satisfied of the sufficiency of the proof then adduced, and denied the application, but with leave to renew the same. Subsequently, upon further evidence, the order appealed from was made.

After an absence of seven years, without any intelligence of him by those who would be likely to hear from him by letter or otherwise, the person will be presumed to be dead. This presumption has been extended so as to lead to the conclusion, in the absence-of any evidence whatever of actual living, that the death took place at the end of the s'even years. (Eagle v. Emmet, 4 Bradf., 117.) John and Mary left Ireland in the year 1869, about eighteen years before this application was made. There is no evidence of the reception, by their relatives, of any letters or other intelligence of them.after their arrival in Australia, excepting during the first year or two after their departure from Ireland. If these presumptions are to be indulged to their full extent, it would appear that neither John nor Mary could have succeeded personally to any of the property of their father, Richard Tobin. Furthermore, John was unmarried when he left home, but Mary, though married, had no children at that time, and there is no evidence that any were born to her subsequently.

As the learned surrogate said, in his opinion, on the first hearing of this application, “ the presumption that the person died without issue will be sustained by very slight proof, such as failure to hear of any such issue, or failure to answer advertisements calling for heirs, as was done in this case.” (Greaves v. Greenwood, L. R., 2 Exch. D., 289.)

On the whole, we are satisfied that the learned surrogate has proceeded cautiously in the consideration of this application, and has acted upon sufficient legal evidence establishing the death of John Tobin and Mary Molloy; and that, consequently, the order appealed from should be affirmed, with costs and disbursements to be paid out of the funds.

Van Brunt, P. J., and Beady, J., concurred.

Order affirmed, with ten dollars costs and disbursements to be paid out of the funds.