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.