Schaub v. Griffin

Page,J., delivered the opinion of the Court. In 1876, John Schaub, of Baltimore City, died leaving a last will by which he devised and bequeathed the whole of .his estate to his widow for life, with remainder to be divided •equally among his four children. On the death of the widow in 1887 the estate was sold by trustees, and out of the proceeds the sum of $1,010.00 was awarded to his daughter, Catharine. This daughter intermarried with one Lewis Kroll, •and having had one child, John S. Kroll, died in 1888. In July of 1889, the amount awarded to Mrs. Kroll out of the proceeds of the sale.of her father’s estate was paid to her •administrator, the defendant, who still retains it in his hands. ¡The bill is filed by the other children and the descendants ,of the deceased children of John S'chaub. In addition to .the facts stated as above, they allege in their bill, that Lewis Kroll and John S. Kroll (the husband and child of Catharine), have been absent from the State and unheard of for ■more than fifteen years last past, and pray for distribution 'of the funds in the hands of the defendant administrator, .and for such other relief.as their case may require, f -The defendant, Griffin, admits all of the allegations of the ■bill,'except as to the alleged absence of Lewis and John Kroll. As to that, he denies the averment and charges they lare still alive. He also avers that if it be true that they are dead, he cannot pay over the fund except to the administrator .of John- or Lewis Kroll,' and none such have been appointed; .that the final distribution must depend on the fact- whether Léwis Kroll predeceased or survived his son; ■and in the latter event, the complainants would have no interest in the fund except in the event of-both having predeceased'- Catherine Kroll. He further alleges that the complainants have no' title to. the'fund on the. facts set out in the .'bill;- and if they have, they have a full remedy at law; all pf.which, he práy&'he may have the .full benefit of, as if it •had:'been made byí demurrer. An order of publication in the manner and form required by the statute was granted by the Court, notifying John Kroll, Lewis Kroll and their — 563 — unknown heirs to appear and answer, and upon their failure to do so a decree pro confesso was entered against them. We think there can be no question as to the authority of the Court to entertain such a case as is made by the bill. It is well-settled that a distributee may support a bill in equity against an administrator for a share in the intestate’s estate. Alexander et al. v. Leakin, &c., 72 Md. 205. And if it be found that John Kroll is dead, it is equally clear that distribution must be made to those who are his representatives. Code, Art. 93, sec. 132. The rights of the parties are to be determined by the application of the provisions of the Code to the facts established by the proof. If Lewis Kroll and his son both survived Catherine Kroll, she having died intestate, her husband, Lewis, would take a life estate (Art. 45, sec. 2) with a vested remainder in the son. (Art. 93, sec. 124). In that event, if the son died leaving no descendants before his father, the father would take the whole. Art. 93, sec. 126. After a careful scrutiny of the proof, as set forth in the record, and the law applicable, we are of opinion it must be held that both father and son survived Catherine Kroll. It appears to be well-settled that absence, unexplained and without having been heard of, for the space of seven years affords a legal presumption of death. Mere lapse of time is not sufficient, but the case is different if there is proof that the person has never been heard of by any of his family or has never communicated with them. Shriver v. State, 65 Md. 286; Tilly v. Tilly, 2 Bland, 444. The general rule is thus stated in Best on Evidence, vol. 2, sec. 409: “ When a person goes abroad and has not been heard of for a long . time, the presumption of life ceases at the expiration of seven years from the period he was last heard of” (see authorities there, cited). It is believed this doctrine has been generally concurred in by the Courts of this country and of England. .We cite some of the cases. Wentworth v. Wentworth, 71 Me. 74; Flynn v. Coffee, 12 Allen, 133; Smith v. Knowlton, 11 N. H. 196; Eagle v. Emmett, 4 Bradford .(N. Y.) 120; — 564 — Rosenthal v. Mayhugh, 33 Ohio St. 164; Jamison v. Smith, 35 La. Ann. 613; Crawford v. Elliott, 1 Houst. (Del.) 465; Shawn v. McMackin, 9 Lea (Tenn.) 601; Bodwitch v. Jordan, 131 Mass. 321; Doe v. Jesson, 6 East. 80; Doe v, Nepean, 5 B. & Ad. 86; 1 Am. Eng. Ency. of Law (1st ed.), title, “ Absence.” But while there is such a presumption of the death of a party, there arises therefrom no presumption of the time thereof, and therefore if it be required to establish the precise period of death, it must be done by evidence. Davie v. Briggs, 97 U. S. 634, and authorities cited supra. It does not follow, however, from this fact that there may not be a presumption of the continuance of life during the waiting period. Indeed it seems difficult to state any sufficient reason, why, a person shown to be alive, at any particular period of time, should not be presumed ‘to continue to live, until there is proof from which the fact of death can be found, or the legal presumption of death arises. That such a presumption does not arise until the seven years have expired carries with it, in the total absence of proof, the presumption of life until that period has elapsed. When, therefore, a person is shown to be alive the burden of proof to establish his death must always rest upon him who alleges it. The unexplained absence for seven years, is proof, which the law for wise purposes constitutes a prima facie case ; but either this prima facie .case or other proof must exist before the burden of proving continuance of life, of one who when last heard of was alive, shall be shifted from him who alleges the death of such an one. “ When, therefore, the existence of a person, a personal relation or a state of things is once established by proof the law presumes that the person or relation or state of things continues to exist as before, until the contrary is shown or until a different presumption is raised from the nature of the subject in question.” 1 Greenleaf on Evidence, sec. 41. See note 2 and authorities there cited. In Montgomery v. Bevans, 1 Sawyer, 666, Judge Field — 565 — said: “ The law presumes that a person who has not been heard of for seven years is dead, but * * presumes that a party once shown to be alive continues alive, until his death is presumed to have occurred, that is at the end of seven years. And the presumption of life is received, in the absence of any countervailing testimony, as conclusive of the fact, establishing it for the purpose of determining the rights of parties as fully as the most positive proof. The only exception to the operation of this presumption is when it conflicts with the presumption of innocence, in which case the latter prevails.” 2 Best on Ev., sec. 409; Eagle v. Emmett (supra) and authorities cited (supra). From the evidence submitted to us it is difficult to determine with precision the time when Kroll and his son disappeared. None of the witnesses are at all exact. They estimate rather loosely the time from the date at which their testimony was taken, that is from July, 1895. The two Fields and Schaub think they went away “ about fourteen or fifteen years ago.” Happal says Kroll worked for him fourteen or fifteen years ago, and they disappeared one year thereafter. Kuhn said Kroll worked for Happal thirteen years ago ; Roemer thinks they have been absent thirteen or fourteen years; Mrs. Schmidt thought they had been gone certainly ten and possibly fourteen years; and Dreusche fixes the period after her father’s death, which occurred fourteen years back. Two witnesses produced by the defendant, testified they had seen him about eight or nine years ago. It is impossible from this evidence to place their absence further back than 1881, if indeed so far as that, for there are matters appearing in the evidence that might possibly justify us in fixing even a later date. However that may be, if it be determined they disappeared sometime in 1881, it is impossible to find that the full period of seven years, the period necessary to the presumption of death, had elapsed at the time of the death of Catharine Kroll sometime in 1888, and this being so the presumption that both father and son were then alive, must prevail. It — 566 — follows from this view, that on the death of Catharine, the property passed to the father for life, and the remainder was vested in the son. The defendant contends that the proof establishes the fact that Lewis Kroll was seen in Baltimore in 1886 or 1887, and from this there ought to arise a presumption of the survivorship of the father. But the testimony of William Kroll and Carrie Kaufman, who alone testify on this point, is very ünsatisfactory. Kaufman states she saw ’him, but had no-conversation with him. She says she saw him on the corner of Durham and Lombard streets, about eight or nine years ago : and after this momentary glance she sees or hears of him nó more. ’ William Kroll states he met Lewis in Baltimore about eight’ years ago and walked with him; but he can give none of the conversation had with him, except that his brother said he had no work and would leave. There was no information whither he was going or whence he came. From out of the unknown he crossed his brother’s path and then disappeared, to be heard of no more. Testimony so meagre and vague is not sufficient to outweigh the concurrent statements of all the other witnesses in the case. But even if this were otherwise, no presumption of survivor-ship can arise from the mere fact that the father was heard from at a time later than that of the disappearance of the son. In 1886 and in 1887, as has been stated, both were presumably alive—the seven years necessary for the presumption of death not having elapsed in the case of either. The son cannot be presumed to be dead until the end of 1888; so that, if the father were alive in 1886 or 1887, there was a period of one or two years in which either may have died. But whether either or both or neither died during this period, there are no means of determining. It seems clear, there is an entire absence of proof tending to establish the survivorship of either. The remainder therefore never passed to the father, and the life interest terminated at his death. The fund ’ ought to be distributed as having been the property of the son, and he being presumably dead his legal representatives are entitled to receive it. — 567 — (Decided January 5th, 1897). These views in no wise offend the rule that no one can be deprived of his property without due process of law. The right to have distribution is based on the existence of proof, from which the presumption of death must be inferred. But this presumption is one of fact and maybe rebutted. There are many cases, not necessary to be cited here, where the Courts have been called upon to adjudicate the, rights of persons who have returned after their property has been distributed, upon proof that raised the presumption of their death. How far Kroll or his son would be precluded from recovering his property, should either return hereafter, is not now before us and is a question on which we must be understood as expressing no opinion. But we are clearly of the opinion that the mandates of a Court of competent authority acting within its jurisdiction would be ample to protect any who may be called upon to act in accordance therewith. We have thus expressed our views because of the desire expressed by the counsel who argued the case, as well as because the questions were directly presented by record. But we do not think the complainants can maintain this bill, even though it be assumed they may eventually be entitled to a portion of the fund. In this State title to the personal property of an intestate can pass only through the medium of an administration. Rockwell v. Young, 60 Md. 566. An administration on the estate of John S. Kroll is therefore necessary. It is fully within the power of the Orphans’ Court to adjudicate on the time and place of the death of a person, and when it has done so its judgment is final and conclusive. Raborg v. Hammond, 2 H. & G. 50. The administrator so appointed will be entitled to have distribution of the fund in the hands of the appellee, and when he shall have received it, it will be his duty to make distribution among those who are entitled according to the Code, as the next of kin of John S. Kroll. For these reasons the decree must be affirmed. Decree affirmed.