
    In the Matter of the Estate of Stephen Losee, Deceased.
    (Surrogate’s Court, Kings County,
    February, 1905.)
    Evidence — Presumption of death — Absence of seven years — Surrogate — Jurisdiction — Disputed, assignment, of .share — Accounting — Who need not be cited.
    Where seven years have elapsed since the disappearance of a person without explanation, other than the supposition that he intended to commit suicide, the presumption arises that he is dead, ■ and in the absence of a determination required by special circumstances that the death happened at some intermediate period, the time of death dates from a decree adjudging him dead.
    
    A surrogate has no jurisdiction to determine the validity of a-disputed assignment of an interest in the estate of a decedent.
    No provision of law requires that either illegitimate relatives of a decedent, or persons claiming to hold disputed assignments of tlie shares óf any of the next of kin, shall be cited to attend the final accounting of the administratrix.
    Upon the final accounting in 1898 of the next of kin of a son, who were also the next of kin of his father who died in November, 1896, leaving no estate and no debts, no mention was made of an illegitimate son of the father and the estate was divided between the next of kin without administration upon the father’s estate. Several months before his father’s death the illegitimate son had obtained an assignment of the father’s share of the son’s estate and left a will making his wife sole legatee and executrix and upon her petition the decree of distribution upon the son’s estate was opened in 1900 to let in parties for a hearing as to their rights. In 1902, letters of administration were granted to her upon the father’s estate and an application to have the entire estate turned over to her was denied. Upon her application as administratrix of the father’s estate and as executrix of her husband to obtain the funds of the estate of the son who disappeared in 1899, in circumstances showing an intention to commit suicide,
    Held, that her testator, not being properly a party to the accounting in 1898, and the validity of the assignment to him of the father’s interest in the son’s estate being questioned, in no view of the case had she any rights as executrix in the present proceeding.
    Held, further, that as -administratrix she had no rights therein.
    1. The decree opening the proceeding in the son’s estate not having been made until after the death of the father, neither his representatives nor assignees had any standing in court.
    2. There being no debts, the next of kin of the son and of the father being the same persons could distribute the estate as they had done, there being no necessity for administration upon the father’s estate. .
    3. That she had no duty in regard to the assignment of the father’s interest in the estate of his son, but upon her own statement not only admitting the assignment but standing thereon, the letters of administration issued to her should be revoked.
    Motion as to- disposition of funds of an estate. The opinion states the case.
    Campbell & Hance, for petitioner.
    Wilson & Wallis, for respondents.
    
      
       See Matter of Davenport, 37 Misc Rep. 455.
    
   Church, S.

This matter has been before the court on several occasions, and the rights of the parties have never been definitely determined.

I shall, therefore, determine every question arising, in order that this somewhat involved proceeding may be finally disposed of.

Cornelius Losee lived on Long Island, and about 1850 had married a woman named Harriet Smith, by whom he had a child Stephen Losee; later he moved to Connecticut, where he lived with another woman, by whom he had children, one of whom was named Thomas Losee. I am satisfied that this marriage was illegal, and that Thomas Losee was an illegitimate son.

Cornelius Losee, for the last fifteen years of his life, was an inmate of the poor house in Darien, Connecticut, at which place he died November 15th, 1896, leaving no estate or debts.

Stephen Losee never married; in February, 1889, he disappeared, under circumstances showing an intention to commit suicide.

Thomas Losee, in 1896, more than seven years after Stephen’s disappearance, made an effort to be appointed administrator of Stephen’s estate. In this matter the question of his illegitimacy was raised, but not determined, as it appeared Thomas was not competent to receive letters.

In April, 1897, the next of kin, on petition, secured letters of administration on his estate and later made an accounting.

It is to be noted that the next of kin of Stephen Losee at the date of administration are the same persons as the next of kin of Cornelius Losee. In their final accounting they made no mention of Thomas Losee (the illegitimate) nor did they procure an administration of Cornelius Losee’s estate, but made direct division between themselves.

In August, 1896, Thomas Losee had gotten what is claimed to be an assignment from Cornelius Losee of all his share in his son Stephen’s estate.

Thomas Losee died March 21, 1897, leaving a will, making his wife (the petitioner herein) his sole legatee and sole executrix therein.

In March, 1899, she filed a petition herein to open the final decree of distribution; a decision was made therein in April, 1900, which simply opened the decree and let the parties come in and be heard in order that their rights might be determined.

Subsequently, on April 15, 1902, letters of administration were issued upon the estate of Cornelius Losee.

Eó attempt was made to go on with the hearing, but in 1902 the petitioner made a motion to have the entire estate turned over to her, which motion was denied.

The present motion is now made by the petitioner in a double capacity; as administratrix of Cornelius Losee and as executrix of Thomas Losee.

The two characters under which the petitioner herein seeks • to obtain this fund occupy a directly contradictory attitude towards such fund. It is impossible for any honorable person to fill two positions and discharge her duty by each, and it is perfectly manifest that the petitioner has taken two positions so as to be enabled to reach the fund if it is possible to do so, and trust to luck hereafter to justify her disposition of the same.

I, therefore, shall take up separately the rights to this fund, first by the administratrix of Cornelius Losee and second the rights of the executrix of Thomas Losee.

The petitioner seeks to contend that under the decision of Surrogate Abbott, rendered in April, 1900, every question has been settled, and that, therefore, the fund should be turned over immediately to the administratrix of Cornelius Losee. I do not SO' interpret this decision; on the contrary I find on the files of this court orders submitted by the counsel for the present petitioner, who was also the counsel in that proceeding, which asked the surrogate to then directly dispose of the fund, but the tjecree which the surrogate entered simply opened the proceeding in order to give the parties an opportunity to be heard and have their rights definitely adjusted. In other words, this decree was very much like an order opening a default, where the court is convinced that there is enough shown to give the party an opportunity to be heard, but carefully refrains from passing upon the merits of the controversy. It is true that some findings were made by the surrogate at the time, but what was the effect of these findings? Under the practice findings were unnecessary,. and although they appear to have been signed they do not appear to have been in any way necessary to the decree; in fact, the decree, which was dated the same day, makes no reference to the findings, but says that it was simply made upon the papers in the case.

In considering the rights of Cornelius Losee we first have to determine the date of the death of Stephen Losee. "Where persons disappear without any explanation other than the supposition that they intended to commit suicide, the presumption is that after the expiration of seven years, they are dead. Eagle v. Emmet, 4 Bradf. 117. And while the court under special circumstances could specifically decree the death to have happened at some intermediate period, Allen v. Ketcham, 5 N. Y. Supp. 566, 24 N. Y. St. Repr. 251, yet in the absence of any such determination the time of death will ordinarily date from the decree adjudging the party dead. If this were so, then as the decree was not made until after the death of Cornelius, it necessarily follows that Cornelius’ representatives or assignees would neither of them have any standing here, and the proceedings might properly be terminated without further inquiry.

But assuming that Stephen predeceased Cornelius-; at the time of the accounting the next of kin of Cornelius were the same as the next of kin of Stephen, assuming that Cornelius had died first, and as it appeared aifirmatively that there were no debts, the parties could distribute directly without the necessity of appointing an administrator for Cornelius Losee, whose sole duty would be to distribute again to the same persons. Schouler Exrs., § 120. “Administration is granted on an estate because there is some occasion for such a grant; and where there is no occasion, no substantial object to be gained by the issue of letters, the grant should be withheld.” A case very similar is that of People v. Abbott, 105 Ill. 595; “ Where there are no debts, and the property is already distributed, and there are no suits to he brought, there can be no necessity for an administration.” See also Herrington v. Lowman, 22 App. Div. 267; Carmichael v. Ray, 5 Ired. 367; Fretwell v. McLamon, 52 Ala. 124; Teal v. Chancellor, 117 id. 616; Babbitt v. Bowen, 32 Vt. 437. That being so this administratrix has no standing here, because she cannot claim that she represents either next of kin of Cornelius (as they have had their share) ; and as there are.no creditors she cannot pretend that she has any duty in that respect. ISfor has she any duty in regard to the claim which Cornelius had given to Thomas, because if he signed that away then he had no interest whatever. It has been held that if it is claimed that a party has assigned his rights, which assignment is disputed, that such assignment is not a bar, but if, as in this case, the party not only admits but stands on the assignment, then the court may act thereon, Bonfarti v. Degnen, 3 Bradf. 429, and upon her statement here the letters issued on Cornelius’ estate should be revoked.

Secondly, what rights has the executrix of the estate of Thomas- Losee ?

If Thomas was the legitimate son of Cornelius and the half brother of Stephen he would be next of kin, and the accounting of 1898, which ignored him, would be ineffective; as I have stated the proofs satisfy me that he was illegitimate, and hence, was not properly a party to that proceeding.

What right did he have as an assignee of the interest of Cornelius Losee in the estate of Stephen Losee ? The validity of this assignment is questioned; that being so, the question of its validity is beyond the jurisdiction of the surrogate to try. Matter of Randall, 152 N.Y. 508. Therefore, even if this- were an accounting by the administratrix of Cornelius Losee the surrogate would not pass on the rights of Thomas Losee thereunder, but would direct distribution to- these respondents.

The disinclination to recognize assignments is further evidenced by chapter 692, Laws 1904, which provides such assignments shall have no effect unless recorded.

The executrix of Thomas Losee has no rights in this proceeding, therefore, under any aspect in which we might view the case.

This decision is somewhat at variance with the views expressed by my learned predecessor, in his opinion, on the motion, to open the decree. It is with extreme reluctance that I differ with one who for so many yeárs so capably filled the office of surrogate in this county, hut he has quoted no authority in support of his views, whereas a careful examination of the authorities has convinced me that his conclusions were not in accordance with the law. It seems to me, therefore, that deference to his learning does not require me to ignore decisions of the highest courts of this and other States.

I appreciate, also, that he indulged in certain strictures as to the conduct of the administratrix herein, with which I am also unable to agree, as it has been shown that there was no reason or necessity to appoint an administratrix for the estate of Cornelius Losee, and when the administratrix cited the various parties in question she complied with all the provisions of the statutes governing her conduct. I know of no provision of law which requires an administratrix to cite illegitimate relatives of the deceased and require them to come forward and disprove their illegitimacy, nor is there any provision which requires an administratrix to cite persons claiming to hold disputed assignments of the shares of any of the next of kin, because, as has been shown, the court has no power to hear or determine any question in regard to such- disputed assignments.

If there is anything in the case which merits judicial criticism it is the conduct of the illegitimate son, Thomas Losee who permitted his father to remain in the County Poorhouse without visiting him for fifteen years, except when he wanted to procure a paper which, if valid, would enable said Thomas Losee to get the entire estate of Stephen Losee.

Proceedings dismissed, with seventy dollars ($70) costs.  