
    Morris B. Marks, Plaintiff, v. The Emigrant Industrial Savings Bank, Defendant.
    First Department,
    December 6, 1907.
    Executors and administrators — administration to preserve property of absentee — foreign administrator not entitled to assets in this State — such administration not proof of death — savings bank deposits.
    Letters of administration issued under the New Jersey statute on the estate of a person absenting himself for seven years do not determine that the person on whose estate the letters are granted is dead, but merely raise that presumption. Hence, when a resident of this State went to New Jersey and entered a hospital, where he remained for some months and then returned to this State, and after-wards disappeared for seven years, letters of administration granted under the New Jersey statute do not entitle the administrator or his assignee to receive a savings bank deposit belonging to the missing person, although the pass book left by him in New Jersey is in the possession of the administrator.
    Such pass book is not property but mere evidence of indebtedness.
    While the State under its police power may enact laws for the administration of ' estates of absentees to protect their property in case of return, payment of a savings bank deposit to the administrator appointed for the purpose is not good as. against the absentee or his legal representatives. "
    Proof of the granting of such administration does not establish even prima facie the fact of death.
    Motion by the defendant, The Emigrant Industrial Savings Bank, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the 'first instance upon the verdict of a jury in favor of tiie plaintiff, rendered by direction of the court after a trial at the Hew York Trial Term in April, 1907.
    
      Frederick 8. Fisher, for the plaintiff.
    
      Richard CP Gorman, for the defendant.
   Houghton, J.:

Prior to the year 1895 Patrick Flanagan was a resident of Brooklyn in this State. Some time in that year he went to Jersey City in the State of Hew Jersey, ,and shortly thereafter entered St. Francis Hospital in that city, in which he remained apparently until August, 1896, when he returned to Brooklyn, where he visited' a brother for a short time and disappeared, hone of his relatives having- heard from or of him thereafter. Upon leaving the hospital he left in the custody of the managers three savings bank books, one of which was issued by the defendant.

In 1905, Joseph Flanagan, a nephew of Patrick, presented to the surrogate of the county of Hudson, the county in which Jersey City is situated, a petition praying that letters of administration of the goods, chattels and credits of Patrick Flanagan, presumptively dead, should be issued to him or some- proper person. Notice by publication, according to the New Jersey statute, was given and the proceeding resulted, as is stated by the certificate, in the granting of “ administration of the goods and chattels, rights and credits which were of Patrick Flanagan (presumed under an act- entitled, An Act declaring when the death of persons absenting themselves shall be presumed,’ passed March 7, 1797, as amended March 28, 1895, to be dead), late of the county of Hudson, who died intestate,” to the petitioner and another.

The proceeding for the appointment of administrators disclosed no property in the State of New Jersey belonging to the alleged deceased, his property consisting wholly of money in three savings banks shown to be located in the city of New York in this State.

In 1881 Patrick Flanagan had deposited with the defendant $2,096, only a portion of the interest on which he had withdrawn from time to time, his last withdrawal of $20 being on December 10, 1895. One of the conditions upon which the deposit was made was that upon the decease of the depositor the amount to the credit of the deceased should be paid to his legal representatives.

After their appointment the administrators presented copies of the proceedings of the Surrogate’s Court of New Jersey on their appointment together with the bank book, to the defendant, and demanded payment to themselves of the deposit which Patrick Flanagan had made. The defendant declined to pay on the ground that the copies of the proceedings in the Surrogate’s Court were not properly exemplified, and further that the papers did not show on their face that Patrick Flanagan was dead, and that such a payment would be no protection against a demand by Patrick if he should chance to be living. Thereupon the administrators assigned their claim to the plaintiff who brought this action against defendant, which resulted in a direction of verdict in his favor and. a direction that the defendant’s exceptions be heard in the first instance before this court.

We think the defendant’s exceptions were well taken and that the direction of a verdict in favor of plaintiff was erroneous and that a new trial must be granted.

The proceeding had in the Surrogate’s Court of New Jersey did not determine that Patrick Flanagan was dead, and the letters of administration issued therein were so issued only because he was presumed to be dead under a statute of that State, which provides that when a person shall remain beyond sea or absent himself from that State, or from his last known place of residence or conceal himself for seven years successively/he shall he. presunied to he dead.

Patrick Flanagan left no property in the State of Hew Jersey when he departed therefrom. Such property as he had was-in the State of New York. The pass book was . not property, It was adinere evidence of indebtedness against‘a resident, of this State. That the book happened to be there is immaterial: (Lavin v. Emigrant Industrial Savings Bank, 18 Blatchf. 1.) There was no occasion, therefore, for the granting of letters of administration for the preservation of an abandoned estate.

By virtue of its police power a State has the right to enact a law for administration on the assets of an absentee, creating proper safeguards for the protection of his interests in case of his return. (Cunnius v. Reading School District, 198 U. S. 458.)

In Roderigas v. East River Savings Institution (63 N. Y. 460), it was held that, payment to an administrator of the estate of a per-. son judicially determined to be dead, but who in fact was alive, was good as against such person or his legal representatives. That case was expressly overruled in Scott v. McNeal (154 U. S. 34) as violating the fourteenth amendment of the Constitution of the United States in that it deprived a person of his property without due process of law; and it. has been expressly declared to be no longer the law-of this State. (Matter of Killan, 172 N. Y. 547, 557.) The plaintiff insists that the letters of administration, prove a legal, death. They do not purport to show a finding of actual death, and. even if they did they would not be proof of that; fact. Proof of the probate of a will or the granting of letters of administration do not establish, even prima facie, the fact of death. (Carroll v. Carroll 60 N. Y. 121.)

It is urged that Scott v. McNeal (supra) does not apply, because the person in that case who was presumed to be dead and upon whose estate administration had been granted, was in fact alive and demanding restoration of his property, The principle however, is the same. The contract of .the defendant, with Patrick Flanagan was that it would repay to him his deposit and' hold itself in readiness so to. do as long as he should -live, and pay only to his representatives' on his decease.' His actual decease has not, been established, Title to the deposit held by defendant has not been transferred from him to the administrators by due process of law, and hence they could not assign it to the plaintiff. Payment to the administrators or their - assignee would not protect the defendant from a repayment to Patrick Elanagan, if he should be alive and hereafter demand it.

In addition, there is very grave doubt whether the New Jersey court ever had jurisdiction to grant letters of administration of any kind. Patrick Flanagan left no property in that State, for the bank books were not property, and he did not die there thus giving jurisdiction. He' was a resident of Brooklyn, in this State,- and went from- there to the Jersey City Hospital, and on his discharge from that institution came back to Brooklyn, from which place he disappeared. Whatever property he left behind him was in this State,-and it might well be said-that if -any administration should be granted because he had abandoned his estate, temporary letters should be issued in this State under the provisions of section 2610 of the Code of Civil Procedure.

Of course, the money on deposit with defendant does not belong to it, and there will come a time when it can be found as a fact that Patrick Flanagan is actually dead, and the money, if he does not in the meantime draw it, can be paid to those entitled.

On the proofs appearing in the record, however, we are of the opinion that the present action cannot be maintained and that tlie direction of a verdict against defendant was error, and that it should be set aside and a new trial granted, with costs to the defendant to abide the" event.

Patterson, P. J., McLaughlin, Laughlin and Lambert, JJ., concurred.

Exceptions sustained, new trial" ordered, costs to defendant to abide event. Settle order on notice. 
      
      See Gen. Stat. N. J. (1709-1895) 1185, § 1; Id. 1187, § 9.— [Rep.
     