Appeal of Esterly, No. 371

No. 371 | Pa. | Mar 30, 1885

Mr. Justice Clark

delivered the opinion of the court,

On the 18th May, 1870, Joseph H. Gery disappeared from his home in the city of Beading, leaving his wife, Elizabeth Gery, and four daughters, Sarah, Anna, Mary, and Lucy E. Gery, and has not since been heard from. On the 17th May following, B. B. Longaker & Son brought suit against him, in the Common Pleas of Berks county, and, on the 30th June, 1870, obtained judgment by default for $155.66; this judgment was subsequently revived by scire facias, judgment having been taken by default after two returns of nihil habet. Although the wife and children of the defendant continued to reside in the city of Beading, the writs of scire facias were not served upon them, nor was a copy left at the dwelling house, in the presence of anv adult member of the family.

On the 11th March, 1879, Joseph T. Gery, who was the father of Joseph H., died intestate, possessed of a considerable estate, real and personal, in Montgomery county. After his decease, upon petition of certain of his heirs at law, an inquest of partition was awarded, by the Orphans’ Court of that county, as to his realty; the petition set forth, inter alia, as follows: “ That said Joseph T. Gery died intestate on March 11th, 1879, leaving surviving him no widow, but four children, to wit: Amanda E. Gery, Jesse H. Gery, Thomas H. Gery and Joseph H. Gery, but the said Joseph H. Gery has been absent from his home and unheard from since the 13th May, 1870 ; that the said Joseph H. Gery has a wife or widow living, named Elizabeth, and had living the following named children, to wit: ‘Sarah,’ &c., ‘all minors, none of whom have guardians,’ ” &c. The court thereupon appointed Joseph Fornanee guardian ad litem for the four minor daughters-of said Joseph H. Gery, and the case was so proceeded with, that on the 13th October, 1879, the heirs were called to accept or refuse the purparts reported by the inquest. Jesse H. Gery and Thomas H. Gery responded to the call, but the record' recites, that “ Joseph H. Gery, third eldest son and heir of said decedent, on being called failed to appear, and it not being satisfactorily proven to the court whether the said Joseph H. Gery was living or dead, directed that Joseph Fornance, guardian ad litem for the children of said Joseph H. Gerv, should be called, &c., and said guardian being called, declined, &c.” The said purparts were then adjudged to said Jesse and Thomas H. Gery at the valuation, and they were directed to give bonds with security in double the amount “ coming to each of the other heirs,” which was done accordingly. The obligors in the bonds, given to secure the shares that of right would have belonged to said 'absentee, if living, “ are held and firmly bound unto Joseph H. Gery, third eldest son and heir of Joseph T. Gery, late,” &c., “ and in case the said Joseph H. Gery died before his father, then to his heirs or legal representatives.”

On 15th March, 1880, Elizabeth Geiy, the wife of the said Joseph H. Gery, presented her petition to the Orphans’ Court of Berks county, asking for the appointment of a trustee clurante absentia under the provisions of the Act of April 11th, 1879. The petition was accompanied by affidavits of persons who knew Joseph H. Gery whilst he lived in the city of Reading, and who deposed to the fact of his having been away and not heard from since May, 1870. Upon the presentation of this petition and affidavits the Orphans’ Court of Berks county appointed Jesse Gery, the oldest brother of the said Joseph II. Gery, trustee as prayed for. This trustee afterwards received and receipted for the amount of the several recognizances, taken in the Orphans’ Court of Montgomery county, securing the interest on share of Joseph H. Gery or of his heirs, and also for that distributive share of the personal estate, and, on the 16tli November, 1880, filed bis account in the Orphans’ Court of Berks county, which account was finally confirmed on 22d January, 1881, showing a balance in bis bands of §5,905.14; this is the fund now for distribution.

R. B. Longaker & Son claim, in this distribution, to Lave a sum sufficient to satisfy their judgment awarded to them out of this fund, and whether they are so entitled is the matter to be determined.

The rule is now well settled, for most judicial purposes, that the presumption of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time they were last known to be living: Best on Presumptions, § 140 ; 2 Greenleafs Ev., § 278 ; Innis v. Campbell, 1 ltawle, 373 ; Whitesides’ Appeal, 11 Harris, 114 ; Williams’ Estate, 8 W. N. C., 310. This period of time, as respects Joseph Iff. Gery, elapsed on the 13th May, 1877; after that day, according to the facts clearly established, he was in the law presumed to be dead. The original judgment of It. B. Longaker & Son having been obtained at a time when the presumption of the defendant’s life still prevailed, it matters little whether or not the revival thereof was valid or invalid, as the original judgment is sufficient evidence of a, lawful claim upon the fund for distribution, if that fund were the defendant's estate.

But does this fund represent the assets and estate of Joseph II. Gery, so as to enable his creditors to participate therein?

The appointment of a trustee, durante absentia,, imports no more than that the fact has been made known to the court, in the form and manner prescribed by law, that the alleged absentee has been absent from his usual place of abode, that his whereabouts have not been known for a period of at least one year, and that he has left an estate, without any person to tako charge of it. It adjudicates nothing as to his being alive or dead, for that is precisely what is not known, and nothing as to his estate ; it makes no provision for notice, and is therefore a proceeding purely ex parte in its character. Although alleged to have an estate, the absentee may, in fact, have none ; those who claim adversely are not made parties, and cannot therefore be concluded by the decree. Whether or not he has an estate may, as in this case, depend upon the date of liis death. He may therefore be fairly supposed to have an estate when he has none, to be alive when he is dead, or dead when, in fact, he is alive. The proceeding is therefore wholly under the control and direction of the court, and the final disposition of the trust estate must, of necessity, depend upon the development of the truth as to the cause of the absence.

It is true, that at the time of the appointment of the trustee, in this case, the period which limits the presumption of life had already expired, but no adjudication, as to Joseph H. Grery’s death, could be had in this form of proceeding, and the trustee entered upon his trust and held the trust property subject to the control and direction of the court, for such uses as to right and justice might belong, when the truth was known and had been established. The purpose of the provision is to prevent spoil and destruction of the estate, during the absence of the supposed owner, or until his death is shown. It follows, therefore, that the trust is but a temporary and provisional one, and that the fund is not necessarily the estate of the absentee. In a distribution of moneys in the hands of an executor or administrator, the fund, from whatever source derived, is necessarily part of the decedent’s estate, and participation in it is limited to those who claim through the decedent, either as creditors, legatees, or next of kin: McBride’s Appeal, 22 P. F. S., 481. In this case, however, the trustee is rather in the nature of a stakeholder, and the distribution is to those who in justice and equity are entitled.

Nor do we discover anything in the record of the proceedings in the Orphans’ Court of Montgomery county, the effect of which is to adjudicate the ownership of this fund. The opinion, filed in the court below, contains a statement of the several sums received by the trustee, out of the realty and personalty of Joseph T. Gery, deceased, the whole amounting to $6,240.85 ; referring to that sum the learned judge says : “ This amount was decreed by the Orphans’ Court of Montgomery county to Jesse Gery, trustee of the said Joseph H. Gery, and was the amount coming to the said Joseph H. Gery out of his father’s estate.” The record exhibits no legal adjudication or decree to that effect; on the contrary, the doubt, as to the real ownership of that share, is spread all over the record, the proceedings throughout being written in the alternative. Elizabeth Gery is represented as his wife or widow; Joseph H. Gery, his wife, and the children are all made parties to the partition, the latter being represented by guardians ad litem; Joseph H. Gery was called to accept or refuse the real estate at the valuation, and as he did not answer the guardian ad litem of the children was called, and the privilege extended to them ; and the recognizances, securing this interest or share in the estate, were drawn to Joseph H. Gery, third eldest son, &c., and in ease he died before his father, then to his heirs and legal representatives; this was not strictly accurate in expression, perhaps, as the heirs are entitled by re presentation, and not bv substitution, but the meaning is obvious and apparent. These several sums of money were paid to, and received by, the trustee under a right, real or supposed, arising from his appointment, without question in any respect, and in advance of any lawful adjudication as to the actual beneficial ownership ; and the fund so received is now brought before the court to be applied to whom it may belong’. If it now appeared, by positive and direct proof, that Joseph H. Gery bad, in fact, ¿lied on the day he disappeared, it certainly cannot be doubted that we would distribute this fund, so held in trust and awaiting adjudication, to those upon whom the estate devolved; and as the presumption of death after the lapse of seven years is as effective as direct proof of the fact, we cannot see how any doubt can exist as to tbe parties entitled here.

it follows from what has been said that the appellants are entitled as heirs of their grandfather, and not as the heirs of their father, and that R. 15. Longaker & Son, as creditors of the father, cannot therefore participate in the fund.

The decree of the Orphans’ Court of Berks county is, therefore, reversed, and it is ordered, that the record be remitted, that distribution may be made in accordance with this opinion.