18 S.E.2d 770 | Ga. | 1942
One who has been absent from his accustomed place of abode for seven years, and who during that time, after diligent inquiry, has not been heard from by those who would be most likely to hear from him, is prima facie presumed to be dead; and the death is presumed to have occurred at the end of the seven-year period. Where such a person was a minor under guardianship when the absence began, and would still have been a minor when the seven years ended, at the latter date the guardian became subject to the provisions of the Code, § 49-316. It then became the duty of the guardian, under that law, to distribute the estate of the ward in the same manner as if he had been appointed administrator of such estate.
(a) In such circumstances, next of kin claiming as heirs at law of the absentee may by suit in equity, instituted against the guardian after presumption of death arose, compel administration and distribution among the heirs of the estate consisting of realty and personality. In such a case the court of equity has full power under the Code, §§ 3-105, 37-1203, 85-1502, 113-2203, so to mold its decree as to protect the absentee or any person claiming under him, should it afterward appear that he was not in fact dead, or that he did not die until after he attained majority. Where the decree affords such protection, distribution of the estate will not offend the constitutional guaranty of due process of law.
(b) In such a case the court of ordinary would not have power, under the Code sections just cited, to so mold its judgment; and therefore the plaintiff could not obtain in a court of law the relief which he seeks.
The defendant demurred to the petition, on the following grounds: that no cause of action, legal or equitable, is set forth; that the petition discloses that the petitioners have no right in their own names to maintain the action; that the petition shows that no administrator of Dixon has been appointed, and that while the petition designates the defendant as administrator it shows that the defendant is his guardian; that the petition shows that the defendant has no legal authority, as guardian, to account to the petitioners for any portion of the trust property, and they could not legally discharge and acquit the defendant, as such guardian, for liability to the ward if any portion of the trust property should be delivered to them; and that if any cause of action exists, it would be in an administrator of Alton Dixon Jr. The court sustained the demurrer and dismissed the action. The plaintiffs excepted.
The Code, § 38-118, among other stated prima facie presumptions, lists "continuance of life for seven years." Under this provision and the rule which exists generally, one who has been absent from his accustomed place of abode, unheard from, for seven years is presumed to be dead, and in the absence of proof to the contrary his death is presumed to have occurred at the end of the seven-year period. Hansen v.Owens,
From the above it follows that Dixon was presumed to be dead in September, 1936, and at that time, had he been sui juris, it would have been proper for an administrator of his estate to be appointed. But under the allegations here, in September, 1936, he would still have been an infant, twenty years of age, and as a guardianship for him then existed, the situation would be governed by the Code, § 49-316: "When a ward shall die intestate, pending his minority, the guardian shall proceed to distribute his estate in the same manner as if he had been appointed administrator upon such estate, and the sureties on his bond shall be responsible for his faithful administration and distribution of such estate." This section by its terms applies where the ward dies "pending his minority," but does not apply where the ward dies after he has attained majority. Morgan v.Woods,
The petition now before the court alleges as a fact that petitioners are heirs of Dixon and are entitled to share in his estate. They can not take as "heirs" and thus be entitled to participate in the distribution of the estate, unless Dixon died intestate. The allegations are tantamount to an assertion that Dixon died intestate during his minority. Therefore the Code, § 49-316, is applicable. This section was codified from the act of 1858, and from its provisions it is clear that the legislature did not intend that, upon the death of the ward during minority, there should be a separate proceeding with an order of appointment from the ordinary. That is not required. The statute operates automatically. When the ward dies intestate during minority, the guardian ipso facto takes on the character of an administrator or becomes ex-officio administrator, acting under the bond originally given; and the only duty thereafter required of him is administration of the estate, which after payment of debts would include distribution among those entitled under the laws of inheritance to receive the estate.
In Scott v. McNeal,
In Cunnius v. Reading School District,
In Georgia there is no statute which corresponds to the Pennsylvania statute which was under consideration in the case last cited. The courts of this State have recognized the existence of the presumption of death arising from seven years absence and have ruled that such presumption, when proved to exist, would authorize the granting of letters of administration, but there is no decision in Georgia indicating what safeguards should be set up in favor of the absentee, to protect him in the event of his return, before a judgment should issue permitting the administrator to distribute his property. Yet from the above cited decisions of the Federal court it is clear that if no such safeguards were set up by judgment the result would be an invasion of the rights of the absentee under the due-process clauses.
The contentions now presented are very clear. The defendant (guardian) insists that should it be required to distribute Dixon's *411 estate among his presumed heirs and Dixon should later appear, he would be entitled to maintain a claim against the defendant for his property, and that the defendant would not be protected by the payments to the heirs. On the other hand the question is asked, if the petitioners are really the heirs, and if Dixon really is dead (as they claim he is presumed to be), can the defendant be permitted to retain possession of the property indefinitely merely because petitioners are unable to present concrete evidence of the fact of death? And this with the presumption referred to now operating fully in their favor?
The situation must be dealt with, having due consideration for the rights of all concerned. On the one hand are the rights of the heirs, who presumably now own the property and are entitled to have it distributed to them; on the other hand is the reciprocal right of the defendant to be fully protected, in making the distribution, against the possibility of Dixon's return alive. Also, the sureties on the defendant's present bond are entitled to protection. Each right is definite, and for each a remedy must be found. "For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other." Code, § 3-105. "A court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators." § 113-2203. "Whatever may be the remedies that have been provided by statute against administrators, the concurrent jurisdiction of equity over the settlement of accounts of administrators is specially retained by the above section of the Code." Howard v. Boone,
In Donovan v. Major,
As bearing generally on the question here involved see 23 C. J. 1007, § 30; 16 C. J. S. 1219, § 609; 25 C. J. S. 1054, § 6;Jennings v. Longino,
Sufficient has been said to distinguish the instant case (in which the absentee by his guardian or ex-officio administrator was a party) from Jones v. Gann,
Judgment reversed. All the Justices concur.