
    Ellen Eckersley, as Administratrix, etc., of Michael Curran, Deceased, Appellant, v. James T. Curran and Others, Respondents.
    Second Department,
    September 23, 1913.
    Decedent’s estate — petition to compel State Treasurer to pay over moneys on deposit — evidence — failure to establish date of death.
    Where, in a proceeding to compel the State Treasurer to pay over certain moneys, it appears that the plaintiff's half-brother, who was unmarried, has not been heard from since 1863; that his uncle died intestate in 1880, seized of certain real property which was sold in 1883, pursuant to a judgment in an action of partition, which directed the share of the proceeds to which the brother might have been entitled to be paid to the county treasurer, without prejudice to the right of any person interested to make application therefor; that such moneys were subsequently deposited with the State Treasurer; that the plaintiff was granted letters of administration in 1912 by a decree adjudging that her brother was dead, but there is no evidence as to the date of the brother’s death, the moneys should not be ordered to be paid to the plaintiff, and an order denying her petition should be affirmed.
    Appeal by the plaintiff, Ellen Eckersley, as administratrix, etc., from an order of the Supreme Court, made at the • Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of January, 1913, denying her petition for an order directing the payment to her of certain moneys held by the State Treasurer.
    
      Daniel De V. Harned, for the appellant.
    
      Robert P. Beyer, Deputy Attorney-General [Thomas Carmody, Attorney-General, with him on the brief], for the respondents.
   Thomas, J.:

Plaintiff’s half-brother, Michael Curran, born in Astoria, N. Y., on December 23, 1834, lived there with his father and stepmother until 1861, when he entered the Federal army, but reappeared at his sister’s home about the fall of 1863 and stated that he had deserted and had been quietly living in the city of New York, and expressed the view that he would not be found as he had enlisted under the name of Richard Rockett. He stated that he might re-enlist, and that in that case his sister would certainly be informed of him. After some two weeks at home he disappeared, and nothing has been heard or seen of him since that time by his family. He was unmarried. In June, 1880, his uncle died intestate, seized of certain real property, which was sold in February, 1883, in an action of partition, wherein by final judgment it was provided:

“And it appearing to the court by all the proceedings herein and by said interlocutory judgment that the defendant Michael Curran and the unknown defendants above mentioned were served with the summons herein by the publication thereof and that neither said defendant Michael Curran nor said unknown defendants have appeared in this action and that said defendant Michael Curran would if living be entitled to the remaining equal one-sixth share of said proceeds, but that it could not with reasonable diligence be ascertained whether said defendant Michael Curran was living or not or whether if living he has a wife or whether if deceased he left a widow or children or descendants or whether he left a last will or whether he ever made any disposition of his interest in said premises or if said defendant Michael Curran is deceased whether he died prior to or since the death of Eev. Michael Curran, deceased, mentioned in said interlocutory judgment.
“ It is further ordered, adjudged and decreed that said referee pay the said remaining equal one-sixth share of the residue of said proceeds to the treasurer of the County of Kings to the credit of this action, to be invested in permanent securities at interest for the benefit of said defendant Michael Curran or said unknown defendants or such other person or persons as are entitled thereto until claimed by him or them or his or their legal representatives, but such payment so to be made to said county treasurer shall be without prejudice to the right of any party to this action or of any other person interested in said share at any time to make application therefor or for any part thereof or for a different disposition of the same upon such terms and conditions as to this court may seem proper and just and that any party to this action may apply at any time for such other or further relief in the premises as may be just and ¡proper.”

Such share is now deposited with the Treasurer of the State. On February 21, 1912, by a decree adjudging that Michael Curran was dead, letters of administration upon his estate were issued to the plaintiff, and she moves to receive the deposit, and the State appears. Has she title to it? When did Michael Curran die ? If he died before the uncle, he took no title, and if he died without issue no title can be traced through him. If he died after the uncle and before the sale of the land, the deposit retains the nature of land, and the administratrix is not entitled to it. If he died after the sale, his administratrix, duly appointed, is entitled to the fund. But there is no evidence that he died at such time as entitles the administratrix to take the money. The judgment in the partition action intended that the money should he paid to any person proving title to it. The plaintiff asserts title in her representative capacity, and clearly she does not show that the fund is an asset which she is entitled to take. It is now nearly fifty years since Michael disappeared, under such circumstances as to justify the presumption that he was dead at the expiration of seven years after 1863. This was explained painstakingly by Mr. Fisher, referee in a previous and similar application, and it is not perceived why the administratrix should move again without further information of the date of the death. In the partition action the court could have proceeded on the presumption that Michael died before his uncle, and adjudged the fund to those entitled if they were made proper parties. But the present order should be affirmed, without costs.

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Order affirmed, without costs.  