Savings Bank v. Weeks , 110 Md. 78 ( 1909 )

This interesting and important question involved in this case was under consideration by this Court in an appeal between the same parties at the April Term, 1906, when JUDGE BURKE, speaking for the Court, in an opinion reported in 103 Md., folio 601, under the law as it then existed, held adversely to the claim of the appellee and reversed the judgment of the Court below. Since that time the statute law of the State, as found in sec. 234, Art. 93, Code of Public General Laws, has been changed by Chapter 125 of the Acts of 1908, in order to meet the objections that were set forth in the aforesaid opinion, the said Act being in the same words as a Pennsylvania statute that received the sanction of the Supreme Court of the United States, in the case of Cunnius v. Reading School District,198 U.S. 458.

The Act in question purports to confer upon the Orphans' Courts the power to grant letters testamentary or of administration upon the estates of persons supposed to be dead, on account of uninterrupted absence for above seven years from the place of last domicile within the State and having been for such time unheard of, if satisfied that the person applying therefor would be entitled to such letters if the decedent were dead. The Act provides for the advertising of notice of such application in a newspaper in the county, or Baltimore City, as the case may be, together with a notice that on a certain date the Court will hear evidence concerning the alleged absence of the supposed decedent and the circumstances and duration thereof, and at the hearing, if satisfied from the evidence that the presumption of death is established, the Court shall so adjudge, and forthwith cause notice thereof to be inserted in a newspaper published in the county or city of Baltimore, as the case may be, and also when practicable in a newspaper published at or near the place beyond the State where, when last heard from, the supposed decedent had his residence, requiring the said decedent, if alive, or any person for him, to produce within twelve weeks from the date of the last insertion of the advertisement, satisfactory evidence of his continuance in life. If such satisfactory evidence be not forthcoming within the time prescribed, the Court shall direct letters testamentary, or of administration to issue which shall be as valid as if the supposed decedent were actually dead. The Act further provides for the revocation of such letters at any time on satisfactory proof that the supposed decedent is in fact alive, and for a settlement of an account of administration. The Act also makes provision for the recovery of his estate by such supposed decedent, and requires that before any distribution of the estate shall be made, the persons entitled thereto shall give bond, with adequate security, to be approved by the Court in such sum and form as it shall direct, conditioned that if the supposed decedent shall in fact be at the time alive, they will respectively on demand refund the amounts received by each with interest thereon. If any such persons are unable to furnish such security, the money shall be safely invested under the direction of the Court, the accruing interest to be paid to the person entitled. There are other provisions in the Act, but the foregoing substantially presents its most important features.

Before passing to a consideration of the objections made to the law, let us briefly state the facts in the case. Margaretta (Margtta) Behrens, having on deposit in the Savings Bank of Baltimore, a sum of money in excess of one thousand dollars, and having been absent from her last known domicile in Baltimore City for more than seven years, Henry W. Weeks, on behalf of the Mayor and City Council of Baltimore, claiming that the money on deposit, under the laws of the State, belonged to the Mayor and City Council for the use of the Board of School Commissioners, on April 28th, 1908, filed a petition in the Orphans' Court of Baltimore City, asking that letters of administration be granted unto him, in pursuance of the provisions of the aforesaid Act of 1908.

Upon this application, on the date aforesaid, the Orphans' Court passed an order to the effect that on June 15, 1908, it would proceed to hear evidence concerning the alleged absence of the said Behrens, provided a copy of the order be published in a daily newspaper published in Baltimore City as required by the statute.

Afterwards on June 16th, 1908, Nannie L. Arnold, Jennie Shubkegel and Sarah Houston filed a petition in Court, denying that Weeks was entitled to the grant of letters of administration, alleging the death of Margaretta Behrens, claiming they they themselves were her next of kin, praying that issues be sent to a Court of law to determine who were the next of kin and that the petition of Weeks be dismissed.

On the 17th of June, 1908, the Orphans' Court passed an order which, after reciting that evidence had been taken under the aforesaid petitions and that the Court was satisfied from such evidence that the presumption of death of Margaretta Behrens had been established, directed that the said Behrens, if alive, or any person for her, produce to the Court, within twelve weeks from July 2d 1908, satisfactory evidence of the continuance in life of the said Behrens, and directing the publication of such order in a daily newspaper in Baltimore City.

The Savings Bank of Baltimore, the appellant, intervened in the case by filing on September 25, 1908, a petition praying for the dismissal of the petition of Weeks and a rescission of the order of the Orphans' Court dated April 28th, 1908, on the ground that the petition of said Weeks is defective in form and substance, and that the Act of Assembly under and by virtue of which the said petition is filed is unconstitutional and void.

On the following day, September 26th, 1908, the Orphans' Court dismissed the petition of the appellant and ordered and decreed "that Margaretta (Margtta) Behrens is hereby judicially determined to be dead, and letters of administration on the personal estate of Margaretta, or Margtta, Behrens, be and are hereby granted to Henry W. Weeks, and that he give bond in the penalty of $3,000 with the American Bonding Company as surety."

The petition of the Savings Bank of Baltimore, it was agreed, should be considered of the same force and affect in all respects as if the same was an answer duly filed to the petition of Weeks, and the same being dismissed, as aforesaid, the appellant forthwith entered an appeal from the decree of Court passed September 26th, 1908, dismissing the petition and granting letters of administration to Weeks.

In adopting the principles announced by this Court in 103 Md. above referred to, it will not be necessary for us to quote at length therefrom, except to state the following conclusions:

"The decisions of the Supreme Court of the United States have established, as true, the following propositions:

First — ``That under the general authority conferred by statute upon the Orphans' Courts of the various states to grant administration upon and to settle the estates of deceased persons, these Courts are not authorized to decide conclusively against a living person that he is dead.'

Secondly — ``That all proceedings in such Courts, in the granting of administrations under such general power, depend upon the fact of death, and are null and void if the person be in fact alive, whether such administration be granted upon a misapprehension of the fact of death, or upon the presumption of death arising from absence.'

Thirdly — ``That it is within the power of the state to confer jurisdiction upon the Orphans' Court to administer upon the estates of absentees, even though they be alive, by special and appropriate proceedings applicable to that condition and distinct from the general power to administer upon the estates of deceased persons. But such powers must be executed in harmony with and in subordination to the Fourteenth Amendment to the National Constitution.'"

That the Act of 1908 is not repugnant to the due process clause of the U.S. Constitution has virtually been decided by the Supreme Court itself, in the case of Cunnius v. Reading SchoolDistrict, supra, as we have therefore only to consider the remaining objections made by the appellant, to wit, that the petition is itself defective in form and substance, and that the appellee, who is neither a relative nor creditor of the intestate, is not such a person as is entitled to the grant of letters; that the Act is repugnant to the Constitution of the State of Maryland; that, even if constitutional, it can only be given a prospective effect and made operative upon the estates of such persons, who have been absent and unheard of for full seven years from the date of the passage of the Act; and that the Act is in violation of the contractual rights, existing between the appellant and the absentee, and is void as impairing the obligation of such contract.

The most important objection, and the one upon which the greatest emphasis was laid in argument, is that the law must remain dormant and inoperative until after the lapse of seven years from the date of its passage. Though ingeniously presented, we think this argument unsound. That all laws ordinarily have only a prospective effect is not a matter of dispute, and without pausing now to examine the statute to see if the language employed indicates a contrary purpose on the part of the Legislature, we think the validity of these procedings, if no other objections were presented, could be upheld upon the theory of its prospective operation upon what is the actual subject of legislation. The statute in providing the period of seven years as the length of time from which death might be legally presumed was making no new law nor even introducing a new rule of evidence, but was only declaring what was well settled at common law and what has been stated in opinions of this Court as well as laid down by standard text writers on the subject. Greenleaf onEvidence, page 57, note; Best on Evidence, sec. 409; Shaub v. Griffin, 84 Md. 563.

The essential basis for the operation of the law is the death, or rather the presumption of death and the judicial determination thereof, which must occur after the date of its passage, if the Act is held to be prospective, it being wholly immaterial whether the period of absence, which, combined with other circumstances, creates such a legal presumption, ran wholly or only partly subsequent to the enactment of the statute.

What circumstances shall establish a condition or situation that will permit the operation of the Act is at best but a rule of evidence,, and it can in no wise weaken the strength of the presumption, nor impair the virtue of the rule, that one of these circumstances, namely, the period of absence, began to run prior to the passage of the law and was completed afterwards. The law was intended to deal with a condition that frequently arises and which has been the subject for judicial action, in many countries, whether subject to the civil or the common law, and in adopting a well known rule of evidence as sufficient to establish such a situation or condition, we think it was intended for the Court to look before as well as after the passage of the Act for the elements of fact to support its determination and decree. When we reflect further that the Act itself was a statute intended to remedy the defects of the Act of 1896, passed twelve years before, which the Court had declared unconstitutional and void, we can hardly conceive it to have been the intention of the Legislature to postpone its effectual operation for a period of seven years from its passage. Whatever might have been our construction of an original Act, as a remedial measure it should be liberally construed to effectuate the purposes in view.

What we have said will likewise apply to the claim set up by the appellant that inasmuch as no law of the character under discussion was on the statute books at the time of her departure from the State, Margaretta Behrens had the right to expect that at any time within seven years from the passage of the Act she could return and demand her money on deposit, and that therefore, it is a violation of the Constitution of the United States by impairing the obligation of the contract between her and the appellant, who is the custodian of her funds, for any person, other than her personal representative, to step in and take from them the property or money in hand. While the primary purpose of such an Act as the one under consideration must be to conserve the estate for the absentee in the event of his return, with only such loss and diminution as may be incidental to an administration of the law, yet it has a secondary object in preventing property from being abandoned without an owner and of placing it to such uses and in the hands of such beneficiaries as would be proper under the testamentary law of the State were the absentee owner thereof actually dead. In the attainment of these objects, by the very language of the statute itself, the rights of the administrator are similar to those of an administrator or executor on the estate of a party actually dead, who may lawfully claim and take charge of the property of his decedent in whosesoever hands or possession it may be found.

A mere reading of sec. 40, Art. 4, of the Maryland Constitution seems to us sufficient to show that the Legislature may rightfully confer upon the Orphans' Court the power given in the Act in question. That section, in part, reads: "They shall have all the powers now vested in the Orphans' Courts of the State, subject to such changes as the Legislature may prescribe." There being no restrictive provision of the Constitution, a fair interpretation of this language, we think, permits the Legislature, not only to make changes in the powers with which the Orphans' Courts were clothed at the time of the adoption of the Constitution, but also to confer additional powers upon such tribunals or to take from them powers which at such time they possessed. We hold, therefore, that the objection to the statute because repugnant to the State Constitution is untenable.

Finally, let us consider the petition filed by Weeks, which alleges the absence and supposed death of Margaretta Behrens, states that diligent but unavailing efforts have been made to locate her heirs at law and next of kin, that her estate consists of money on deposit in the Savings Bank of Baltimore which under the law belongs to the Mayor and City Council of Baltimore for the use of the Board of School Commissioners, and prays for the grant of letters of administration. It is urged that sec. 31, of Art. 93, of the Code cannot be invoked for authority to grant letters in a case like the present, and that the petition should at least make out a prima facie case by distinctly alleging that there are no creditors or relatives of the persons supposed to be dead. The Act itself prescribes under what circumstances and unto whom letters of administration may be granted. The test laid down is that the Court shall be satisfied that the party applying would be entitled to administer if the supposed decedent were actually dead. Of necessity, therefore, resort must be had to the testamentary law of the State in order to determine this question, and, if the facts of this case are as alleged, there being no relative or creditor applying, sec. 31, of Art. 93, Code of Public General Laws must be looked to as controlling the action of the Orphans' Court in the matter. Without reference to authority, for we know of none on the subject, it seems consonant with common sense that if the statute be operative in the case where application is made by a relative or creditor, it is likewise proper that, when there is no relative or creditor, such person as would be the beneficiary of the estate under the laws of descent, or distribution, or escheat, as the case may be, should in the discretion of the Orphans' Court be granted letters of administration.

As to the allegations of the petition, it should be noticed that the requirement of the Act of 1896 that a "written petition" be filed by the applicant is omitted from the Act of 1908, so that the party applying may do so orally, as well as by petition, it being necessary only, whichever method may be adopted, to satisfy the Court that the applicant would be entitled if the decedent was actually dead. The application is a preliminary matter, and afterwards the Orphans' Court is required to take the steps mentioned in the act for the ascertainment of the circumstances attending the absence of the party alleged to be dead before it proceeds to issue letters of administration. We cannot consider, in the present case, that the allegation that there were no creditors or relatives was essential to give the Orphans' Court jurisdiction in the premises. It is not a question of jurisdiction. That is determined by the subject matter. It is merely a question as to whether the Court is satisfied of thebona fide character of the application and that the applicant was entitled under the law to receive letters. The averment that diligent but unavailing efforts had been made to locate the next of kin of the absentee. taken in connection with the other allegations of the petition, doubtless raised a satisfactory presumption in the mind of the Court that there were none inesse, and this presumption, after the advertisements and taking of testimony prescribed by the act, was sufficient to lead the Court to judicially determine the absentee to be dead. The mind of the Court was particularly called to the point as to the existence of relatives of the absentee by the petition of Nannie L. Arnold and others, in which the question was distinctly raised and upon which the Court duly and formally passed.

Finding no serious defect in the petition, we think also that the petitioner had the right to make the application and to receive the grant of letters. Under our testamentary law, if there be no creditors or relatives of the decedent, the fund would go to the use of the School Commissioners, Code, Art. 93, sec. 134. By the charter of Baltimore, sec. 99, the School Board is made a department of the Mayor and City Council. The exact language of the section is: "There shall be a Department of Education of the Mayor and City Council of Baltimore. The head of said Department shall consist of a Board of School Commissioners."

When Weeks, as the agent or attorney for the Mayor and City Council, which corporation includes the School Commissioners, recites in his petition that the money to be collected is for the use of the latter body, we think that there is a substantial compliance with the provisions of law, and that the beneficiary of the estate may be considered as the real applicant, and, when, there is no creditor or relative of the decedent, or absentee, supposed to be dead, the law would become nugatory and incapable of execution, if the beneficiary of the estate, or some person on his or its behalf, could not make such application as would set in motion the machinery of the Orphans' Court for the purpose of procuring possession of the property.

Order affirmed, with costs to the appellee above and below.