D'Arusment v. Jones

McEaRLAND, J., delivered the opinion of the Court- The question in this ease is the validity of an administration upon the estate of a living person. The complainant files this hill to have satisfaction of four notes for $1,000 each, executed to her by William C. Harrison on the 15th of January, 1861, and secured by a deed of trust on a tract of land in Shelby county, which she on that day had sold and conveyed to said Harrison. She states that soon after the date of said transaction she left the State of Tennessee, and resided for several years in the States of the North, and after-wards in Europe, returning to this State shortly before the filing of this bill, April 25th, 1874. Hpon her return she discovered that during her absence, to-wit. on the 10th of August, 1869, the defendant, David Whitly, had procured letters of administration upon her estate from the County Court of Shelby county, upon the pretext that she was dead, and as such administrator had filed a bill in the Chancery Court of said county against the personal representative and devisee of said Harrison (who had died) and the heir of the trustee in the deed of trust (who had also died) to have satisfaction of said notes, alleging that they had been lost or mislaid. — 253 — The cause was compromised, and a decree rendered in favor of said Whitly for $3,500, upon condition that he execute a bond with surety to indemnify the estate of said Harrison, or the devisees of said land, to the extent of said sum of $8,500, '' against all claims that might be set up by complainant, if alive, or by any assignee of said note. The bond was executed and the money paid. • The prayer of the bill is to have satisfaction of the notes out of the trust property, but that Whitly' and his sureties be held liable upon his aforesaid bond to the extent of the penalty thereof, in exoneration of the land. It is conceded that the material allegations of the bill have been established, but it is maintained that Whitly acted in good faith and .with due caution upon the belief that complainant was in fact dead, a belief justified by the fact that she had been absent for more -than seven years, and the most diligent inquiries among her friends and acquaintances could discover no trace of • her, and it is insisted for the defendant that the administration of Whitly should be held so far valid as to constitute a protection to innocent parties who in good faith paid to him money due the complainant. A similar case has never before arisen in this State, so far as we know. It is a question that has recently attracted some attention. Previous to the decision of the Court of Appeals of Hew York, in 1875, in the case of Rodrigas v. East River Savings Institution, 68 N. Y., 485, it seems — 254 — not to have been doubted that such an administration would be absolutely void. Chief Justice Marshall said, such an act “all will admit is totally void: ”Geffoth v. Frazier, 8 Cranch, and there are numerous dicta and several decisions to the same effect: Binson v. Ivey, 1 Yer., 306 ; Allen v. Dundas, 3 Term R., 125; Wilson v. Frazier, 2 Hum., 30; Jochumsen v. Savings Bank, 3 Allen, 87; Taylor on Evidence, vol. 2, secs. 1490, 1523. The case in 63 N. Y., before referred to, raises the direct question. Administration had been granted upon the estate of one who had been absent and. not heard from for more than seven years, and money collected from his debtor: It turned out that he was not in fact dead, and the question was whether the payment made by the debtor was a protection against a second demand. The Judges were divided in opinion — four to three — the majority holding the payment a protection. ' The decision has been severely criticised by Judge Redimid in 15 Am. Law Reg. It is fair, however, to say that the opinions present that side of the question with all its force, and show that at least something may be said in its favor. The argument may be briefly stated thus : Upon proof of death, the Surrogate was compelled to act and grant administration. Proof of seven years’ absence without being heard from was prima facia evidence of death which the Surrogate might be unable to rebut, and therefore he was compelled to act, and • grant the letters of administration. Armed with these letters, the administra, — 255 — tor could demand payment, and the debtor could not resist, and therefore, it being a payment compelled by law, the debtor ought to be protected, especially as it is the acts of the supposed decedent in remaining absent without communicating with bis friends for more than seven years that causes the injury, and consequently be, rather than the debtor, ought to suffer. The decision, however, was to some extent placed upon the Statutes of Hew York, which were assumed to be peculiar in this respect, that is to say, before administration can be granted the fact of the person’s dying intestate shall he proven to the satisfaction of the Surrogate, who shall examine the person applying touching the time, place and manner of the death, and may examine any other persons, and for that purpose compel their attendance as witnesses. While it is conceded that, in general, the finding by the Court of the fact upon which the jurisdiction depends is not conclusive of the jurisdiction, yet it is maintained that, as in this instance, the Court was required to hear evidence' and determine the facts, the determination must be conclu sive until revoked, so far as concerns third persons, who had acted upon the faith thereof. It does not seem clear that an administration granted under such a statute would in this respect be different from administration granted under a statute simply authorizing the granting of administration upon the estates of deceased persons, but it is un — 256 — necessary in the present case to pursue this branch of the inquiry. The force of the argument in favor of the validity of the administration seems to apply especially to a case of this character, when the assumption of death rests upon the fact of seven years’ absence without being heard from, and the hardship of requiring a debtor who has recognized an administrator appointed under such circumstances liable to a second payment, seems peculiarly pointed. It must, however, be in principle immaterial what the proof of death, may be as to the effect of the judgment', whether the Court find or assume the fact of death upon proof of seven years’ absence, or upon testimony of witnesses directly to the point, the question must be the same; that is to say, is the finding or assumption of the fact of death by the Probate Court conclusive until revoked by the same Court, or reversed on appeal, for we have no statute authorizing administration to be granted upon proof of seven years’ absence without being heard from. It is simply a common ■ law rule of evidence, and it has no more force than any other evidence that may turn out to be untrue. Administration granted upon such evidence is no more lawfnl than if granted upon false testimony of witnesses. It may be the misfortune of the parties in interest in either case that for the time being they are unable to show the real truth. In such a case there is real hardship in requiring a debtor to pay the second time, — 257 — but such is always the effect of holding, as Courts are often compelled to do, that former judgments have been rendered without jurisdiction. The defendants in this case were unable to defeat the demand of Whitly, because they were, unfortunately, unable to prove the real truth. Such misfortune often occurs. The hardship to the debtor cannot be regarded greater than to hold the creditor bound by an administration of his estate in his lifetime. To deprive him of his property and rights by a proceeding of this character, to which, by no sort of construction, can he be regarded as a party, is a violation of first principles. It is said, however, that it is the fault of the supposed decedent in remaining absent for seven years without communicating with friends that gives rise to the presump-, tion of death and causes the injury, and he ought, therefore, to be bound by his own act. The seven years’ absence may be wilful], or it may be the result of insanity, imprisonment, or other misfortune. The failure of friends and acquaintances to be informed as to the residence of the absent one, or that he still lives, may be the result of accident, or other cause. In what cases the conduct of a person in remaining absent and conniving at the acts of a pretended administrator should be held fraudulent and an estoppel, it is unnecessary to inquire, as such is not the present case. Whitly, to whom administration was granted as next of hin, turns out to be' in nowise related to — 258 — complainant, and slie could not have anticipated Such a proceeding, or be held to have connived at it by remaining absent. A debtor, in a case like the present, could always obtain the indemnity which in this ease was obtained, by applying to a Court of Chancery, that is a bond of indemnity against the contingency of the creditor returning alive, an indemnity that, perhaps, ought to be provided by statute, and there could be no more hardship in requiring the debtor to look to such a bond for indemnity than in requiring the creditor td do so. The money, when thus paid, should be recovered back, either by the debtor who has paid it, or by the creditor who returns alive, and if the security of the bond fail, it would be as great a hardship, to say the least of it, to require the creditor to lose it as to throw the loss upon the debtor. Therefore the question of hardship is out of the way, and the fact that the administration was granted upon the proof of seven years’ absence forms no exception to the general rule, and we return to the simple question,-whether administration upon the estate of a living person is valid. Has a Probate Court, under our statutes jurisdiction to grant administration otherwise than upon the -estates of deceased persons ? ■ Cur statutes have not the supposed peculiarity of the statutes of New York. They simply authorize administration upon the estates of deceased fersons, and if the person be not dead, the Court would be acting ultra vires to appoint an adminis — 259 — trator. But it is said the Probate Court has jurisdiction to ascertain the fact of death,' and its judgment finding that fact is conclusive until revoked or reversed. The general principle is, that the jurisdiction being conceded, the judgment is conclusive of all matters involved, but if the jurisdiction be disproven, then the judgment is void for all purposes. If it be conceded that the-jurisdiction rests upon the existence of a particular fact, then it will not do to say that the finding of that fact by the Court is conclusive its own jurisdiction, for this would be, to use a common expression, “ reasoning in a circle.” The judgment is conclusive, if the Court has jurisdiction, and its judgment that it had jurisdiction is conclusive of the jurisdiction. There may be, in some cases, confusion as to what' constitutes the jurisdictional facts, - but this would seem to be about as clear an illustration of it as could be found. That a Probate Court has assumed that a certain person is dead, and has granted administration upon his estate, when in fact he was not dead. A similar illustration is given by Chief Justice Marshall. He says: “If by any means whatever a prize court should be induced to condemn as a prize of war a vessel which was never captured, it could'not be contended that the condemnation operated as a change of property.” The proper distinction is illustrated in the case of Allen v. Dundas, 3 Term Rep., 125, where it was held that payment to one named as executor — 260 — in a forged will, which had been presented and allowed in the prerogative court, was a protection against the demand of one who had procured the proceedings on the forged will to be set aside and himself appointed administrator, this, upon the ground that the person being dead, the Court had jurisdiction. But the Judges said that if the person were not in fact dead, the whole proceeding would be void. So that the jurisdiction rests upon the fact of death, and this being clearly shown untrue, it must result that the entire proceeding was without jurisdiction and void. Bor at least it sounds almost absurd to say that any man is to be bound by the judgment of a Probate Court that he is dead. The argument that the Court has jurisdiction to ascertain the fact of death is fallacious, for this must assume that the Court may decide the question either way, and if it concludes that the person is not dead, then it has no jurisdiction for any purpose. While the Court may hear evidence of the death, the fact is generally assumed, and if the Court undertake to put its finding of the fact in the form of a judgment, it gives it no greater validity. This conclusion is sustained by the great weight of authority. The direct question was fully considered, in a case precisely similar, by the Supreme Court of Massachusetts, and this view held by the unanimous opinion of the Court. See Jochumsen v. Savings Bank, 3 Allen, 87. The principle ■ is directly involved in the case of — 261 — Thompson v. Whitman, 18 Wall., 457. By the laws of Hew Jersey it was made unlawful for anyone not at the time a resident or inhabitant of the State, to gather clams, oysters or shell fish in the waters of that State, and the law authorizes the seizure of the vessel and its forfeiture, which may be declared by any two Justices of the Peace of the county in which the seizure occui’red. The suit was in the United States Court against the Sheriff who had carried away the vessel. ' The defense was the judgment of condemnation of two Justices of the Peace of Hew Jersey, which jud.gm.ent recites _ the fact that the vessel had been seized in their county. This was held not conclusive, and it being shown that the seizure was not in the county, the judgment of condemnation was held void. Our own case of Wilson v. Frazier, 2 Hum., 30, was where administration was' granted in two different counties about .the same time. Judge Reese said, “ the letters granted in the county other than the county of the intestate’s residence were void.” Other similar cases are referred to in the case of Jochumsen v. Savings Bank, 3 Allen, 87. If the judgment of the Probate Court. as to the residence of the intestate is free from a collateral attack, it can hardly be said that the judgment of the Court as to the death of the party can stand upon a higher grou'nd. In fact, so far as our researches have gone, the case of Rodrigas v. — 262 — East River Savings Institution stands alone, and even that decision seems to have been rendered doubtful upon a second hearing of the case. See 19 Am. Law Journal. As a further argument against the validity of the administration, we need only see to what it would lead. If the administration was valid until revocation, as argued in the present case, then it must result that the decree of the Chancery Court in the bill filed by Whitly to collect these notes was likewise conclusive, for in that view it was a bill filed by one who was, for the time being, properly authorized to act as administrator to collect assets due the estate. The proper defendants were made, and the Court had jurisdiction of the subject matter, and the decree rendered in the cause must, in that view, be held conclusive upon all parties. But suppose the decree had been in favor of the defendants in the cause, that no such note had ever been executed, or that they had been paid, would • the complainants in this cause be bound by the adjudication? Is it possible that she could thus lose her property and rights by a proceeding to which she was in no sense a party? The decree was, in fact, for only part of the debt. Without attempting to further follow the discussion into refinements, it is sufficient to say that it will at least bring us back to the plain common sense view of the question, to which we think there is no sufficient answer, and that is, that — 263 — there is no law. for administering upon .one’s estafe until after he is dead, and that no living man is hound by the adjudication of a court that he is dead. It might be different if we had a statute such as exists in Rhode Island, or such as the Rew York Court seems to have construed theirs to be, providing that after an absence for a given time one’s estate may be administered upon as if he were dead, subject only to his right to reclaim the proceeds, in the event he return. Even then it would be a question whether this would not be depriving a man of his property without due process of law. See Albany Law Journal of May 15, 1880, p. 383. But, at any rate, we have no suck statute.. We hold the entire proceedings void. We also hold Whitly and his sureties on his bond of indemnity liable, to the extent of the penalty, for the money received by him. The amount thus realized will be paid, to complainant in exoneration to that extent of the trust property: 1 Lea, 586. It appears that some of the persons to whom Whitly distributed the funds have voluntarily paid to complainant part of the amount. An account of this, as ordered by the Chancellor, will be taken, and the amount credited on the decree on the indemnity bond. Tinder the circumstances, we disallow interest during the war, and until June 1st, 1865, in accordance with our holding in similar cases, upon the ground that the parties were, for the time being, separated by the lines of the hostile. — 264 — armies, ■ and occupied toward each other the relation of public enemies, between whom commercial intercourse was forbidden. With this modification, the decree of the Chancellor will be affirmed, and the 'cause remanded, and the costs of this Court divided.