In re the Judicial Settlement of the Account of Davenport , 75 N.Y.S. 934 ( 1902 )

Chuech, S.

The public administrator, as administrator of John Herr, presents his account for judicial settlement; he was! appointed on proof showing that the deceased was absent from his domicile for a period of twenty-five years, without any intimation as to his whereabouts during said period; the court holding that these facts warranted the presumption of 'his death.

The deceased had never.married; his only next of kin, at the time he disappeared, in 1873, was a brother, George Herr, and a sister, Dora Hailing.

The sister died, in October, 1876, leaving no children, but a husband, who subsequently died.

The question which now arises is whether John Herr died before or after his sister Dora Hatling, as, if he died before then, Dora Hatling’s representatives are entitled to share in his estate; while, if he died subsequent, then his brother George Heñís entitled to the whole estate. As there is no proof on the matter whatever, is there any presumption as to the time of death?

In the cases where death is presumed from absence there are many times circumstances which warrant the court in fixing the period of death. A frequent illustration of this is where the party who has disappeared has gone on a sea voyage, and the vessel has never been heard from.

In the following cases shell facts existed: Matter of Ketcham’s Estate, 5 N. Y. Supp. 566; Matter of Ackerman, 2 Redf. 521; Sheldon v. Ferris, 45 Barb. 124; Oppenheim v. Wolf, 3 Sandf. Ch. 571; Gerry v. Post, 13 How. Pr. 118; Merritt v. Thompson, 1 Hilt. 550; King v. Paddock, 18 Johns. 141; McCartee v. Camel, 1 Barb. Ch. 455.

The principle of these cases, of course, does not apply where, as in the case at bar, there is no evidence except the unexplained absence of the deceased.

In Eagle v. Emmet, 4 Bradf. 117, the question of the presumption of the time of death was discussed at great length, the final conclusion being as follows: “ if no sufficient facts are shown from which to draw a reasonable inference that death occurred before the lapse of seven years, the .person will be accounted in all legal proceedings, as having lived during that period.”

The Eagle case has been followed in Seligman v. Sonneborn, 1 How. Pr. (N. S.), and Matter of Sullivan, 51 Hun, 379.

It seems to me that the decision of the Eagle case is correct, as, if the court is not warranted in presuming death in the case of mere absence, until seven years have elapsed, for the purpose of issuing letters, how can the court on the same facts, when letters are issued, presume death at any earlier period?

I, therefore, decide that the presumption is that John Herr did not die until seven years after he disappeared, and that, therefore, his sister Dora Hatling died before him.

In deciding this case I wish to particularly commend counsel for the respective parties for the very excellent briefs which they have submitted. I think the habits of study and care which these young men have exhibited will bring its sure return in success in their career.

Decreed accordingly.