258 Pa. 73 | Pa. | 1917
Opinion by
Martin Maley died in 1913, leaving a will in which, after giving certain specific legacies, he left his residuary estate to his wife, plaintiff in this proceeding, and appointed her executrix. Deceased had been an employee of the Pennsylvania Railroad Company, the defendant, ' and had, since 1893, made deposits in the employees’ saving fund of the company, and, at the time of his death, there was standing to his credit in that fund the sum of $1,774.25, the subject-matter of this litigation. In his application for membership deceased provided that, in event of his death, the amount due him should be paid to his three children, Jerry, Daniel and Mary, or, in case they were not living, to his legal representatives. The regulations governing payment of the saving fund provided that “Upon the presentation to the superintendent of the fund of satisfactory proof of the death 'of a depositor, the money belonging to him shall be paid only to the beneficiary designated, in accordance with these regulations, to receive the same; or, if the beneficiary so designated shall not be then living, said fund
The second assignment of error questions the jurisdiction of the Court of Common Pleas to adjudicate the fact of the death of the two sons. Defendant contends that exclusive jurisdiction of this question is vested in the Orphans’ Court, and that an application should first have been made to that court by plaintiff for letters of administration on the estates of the absentees, in accordance with the provision of the Act of June 24, 1885, P. L. 155. Previous to the passage of this act the practice of the register of wills had been to grant letters of administration on the estates of persons presumed to be dead because of seven years absence, on the production of sufficient evidence before him. In the case of Devlin v. Commonwealth to use, 101 Pa. 273, this court held the grant of letters of administration by the register in such case to be absolutely void if afterwards the absent person was found to be alive. The Act of June 24, 1885,3?. L. 155, followed, apparently for the purpose of establishing a uniform practice conclusive upon all parties. The act begins by providing that “whenever, hereafter, letters of administration on the estate of any person sup
The courts have frequently, since the passage of the Act of 1885, assumed jurisdiction to pass on the question of presumption of death without the formality of applying for letters of administration pursuant to that act. For instance, in In re Petition of Mutual Benefit Co. of Penna. for Dissolution, Schoneman’s App., 174 Pa. 1, the Common Pleas decided the question in a proceeding to distribute the estate of a mutual benefit association. In Francis v. Francis & Beale, 180 Pa. 644, proof of death of an absentee was received in the Common Pleas in an issue devisavit vel non on the will of another person, the court not deeming it necessary to await a determination of the death of the absentee under the provisions of the Act of 1885. In Baker v. Fidelity Title & Trust Co., 55 Pa. Superior Ct. 15, the question was raised
A verdict and .judgment for plaintiff does not amount to a distribution of the estate of the absentees, for the „ reason that, when the fact of their death, before that of deceased testator, is established, the fund does not pass to plaintiff through them, but passes directly to the personal representative of deceased under the agreement for disposition of the benefit fund, and also as part of the estate of the deceased father. The presumption of death from absence is as effective as direct proof of the fact of death, the rule being that property such person would have inherited does not vest in him, but passes directly to others entitled thereto: Esterly’s App., 109
Defendant cannot be injured by a judgment in favor of the plaintiff for the amount in its hands. It admits the amount is due and merely desires to be protected in making payment to the proper person. This protection is fully given by the judgment of the court in the present proceeding. In Devlin v. Commonwealth to use, 101 Pa. 273, this court held a voluntary payment to the administrator, appointed on the estate of a person on the strength of the presumption of death before the Act of 1885, was not a defense to a subsequent action by the supposed decedent, but said (page 278) : “Had John F. Devlin been compelled, by a court of competent jurisdiction, to have paid to the administrator the money in controversy, his case would have been very different.” In Miller et al. v. Beates et al., 3 S. & R. 490, it was said in answer to a similar contention (page 494): “As to the injury which might arise to John G. Schlosser, by
The question as to the amount and sufficiency of the security that should be required to be entered by the' distributees entitled to the fund, is not before us and may properly be considered when- the account of the administratrix comes before the court for distribution.
The remaining question is whether the evidence is sufficient to warrant the jury in finding the fact of death of the two sons. Jerry Maley left home in 1894 when under twenty years of age. Daniel Maley left in 1897, when about the same age. They lived at home with their father in the small village of Grover, containing about 150 inhabitants. The fact of their leaving was, without doubt, generally known in the community, especially as their father had been a resident there for many years, and the family was well known. After the departure of the sons the father continued to, reside in Grover until his death in 1918. During the long period of twenty years which elapsed since the departure of the sons no word was received from either of them, or reason shown for their going away, or their destination given, except by the testimony of a witness, who employed Jerry, to the effect that the latter indicated an intention of “going
The question as to the evidence required to raise the presumption of death was again discussed in Innis et al. v. Campbell, 1 Rawle 372, 375, as follows: “A person, provéd to have been alive at a particular time, is presumed to be so still; and the onus of proof is on him who alleges the contrary. But in addition to lapse of time, proof that he has not been heard of .for seven years, is sufficient to rebut the presumption of life; and, was it Shown that Mrs. Wallace had not been heard of for that
In the case of Francis v. Francis & Beale, 180 Pa. 644, 646, the supposed deceased had gone with others to settle in Patagonia, and was a member of that colony when last heard from. The contention was that a' presumption of his death existed, as no word had been received from him for a period of over seven years. The trial judge affirmed a point that “the presumption of death arising from the absence of the person for seven years unheard from stands as competent and satisfactory proof until it is successfully rebutted by competent evidence to the contrary,” with the qualification that if a party left his home “without saying where he was going, or if he had left his home on a business trip or a pleasure trip, and nothing had been heard of him for a period of seven years, then the presumption would arise that he was dead. But if he went away for the purpose of establishing a permanent home somewhere else, and he was known to be alive there, then the presumption would not arise until he would be absent from that home and unheard of there.” The jury found the absentee was alive, and this court affirmed the judgment, saying the instruction to the jury was correct, and that “A presumption of death is raised by the absence of a person from his domicile unheard of for seven years. Absence in this connection means that a person is not at the place of his domicile, and that his actual residence is unknown. It is for this reason that his existence is doubtful, and that after seven years of such absence his death is presumed. But removal alone is not enough. The further fact that he has disappeared from his domicile and from the knowledge of those with whom he would naturally communicate, so
Had the sons in this case announced their destination upon departing, or had knowledge of their destination been subsequently acquired, from which it appeared the two boys left home with the intention of establishing their permanent residence at another place, absence from such place unheard of for a period of seven years would become necessary to raise the presumption of death. But under the circumstances of their departure, (and in view of their failure to communicate with their father, to whom they would naturally be expected to impart information), to prove their destination was unknown and that they had not been heard from for the period of time which had elapsed, was sufficient to raise a presumption of death, and must stand as proof until rebutted by evidence to the contrary.
The judgment is affirmed.