5 N.Y.S. 566 | N.Y. Sur. Ct. | 1889
The only material point to be decided in this application is, what wrns the date of death of the intestate? While the law raises a presumption of death after an absence of seven years, unheard of, yet it raises no presumption as to time of death. If it becomes important for a party to establish a precise time of death, he must do so by evidence, and cannot rely either upon the presumption of death or of the continuance of life. The time of death, whenever it is material, must be inferred from all the circumstances of the case. While the presumption does not attach to a lapse of time less than seven years, yet, after a lapse of seven years, should all the circumstances warrant it, the fact of death may be found from the lapse of a shorter period. The issuing of letters of administration upon the estate of a person is prima facie evidence of the person’s death, as it will be presumed that the court issuing the letters did so upon competent proof of that fact. After examining the petition afld all the testimony taken in the application for letters of administration in this matter, I have no doubt the intestate died on or about the 16th day of November, 1876, and I so hold.
Such being the case, he left him surviving, as his next of kin, entitled to share in his estate, his uncle, John H. Allen, and his three aunts, Cynthia McKee, Elizabeth Leek, and Sarah Burtis. The share of Sarah Burtis was vested at the time of her death, and is now payable to Leonard J. Burtis, her sole next of kin and administrator. Let decree be entered accordingly.
