104 Va. 826 | Va. | 1906
delivered tbe opinion of tbe court.
Tbis suit was instituted by C. E. Kennedy against C. W. Grandy, surviving executor of Dr. William Selden, deceased, to recover a legacy.
It appears that Dr. Selden, by bis last will and testament, which was probated in November, 1887, bequeathed to Charles II. Kennedy tbe sum of $1,000'. Kennedy died before tbe testator, leaving three children, who under section 2523 of tbe Code were entitled to tbe legacy. The executors paid to two of the children their portion of the legacy. Upon the 7th day of January, 1896, the Corporation Court of the city of Norfolk, upon proof that O. E. Kennedy, the other child, had been a resident of this State and had since gone from and had not returned to the State, more than seven years prior to that date, adjudged, ordered and decreed that he was and should be presumed to be dead, as declared by section 3373 of the Code, and appointed T. D. Kennedy, his brother, administrator of his estate. A-few days after his appointment he collected his brother’s share of the legacy from the appellant as surviving executor of Dr. Selden.
In 1904 C. E. Kennedy, who had been absent from the State for many years, made a demand upon the surviving executor for his share of the legacy; and upon his refusal to pay the same this suit was instituted, and upon a hearing of the cause a decree was rendered against him for the sum demanded. From that decree this appeal was taken.
The first assignment of error is that the payment made by the appellant to T. D: Kennedy, as administrator of the estate of the appellee, was a valid payment, and that the trial court erred in not so deciding.
Section 3373 is as follows: “If any person, who shall have resided in this State, go from and do not return to the State for seven years successively, he shall be presumed to be dead in any case wherein his death shall come in question, unless proof be made that he was alive within that time.”
It may well be doubted whether the Legislature intended by that section to authorize the courts to grant letters of administration upon the estate of a person who was once a resident of the State and had been absent therefrom for more than seven years, irrespective of death. But if it be conceded that such was its intention, is not the statute in plain violation of the due process of law clause of the 14th amendment ?
It is conceded, and if it were not it is well settled, that the grant of letters of administration on the estate of a live man, as if he wer.e dead, is absolutely void.
In the case of Scott v. McNeil, 154 U. S. 34, 38 L. Ed. 896, 14 Sup. Ct. 1108, the question of the validity of such letters of administration was fully discussed, the authorities, English and American, cited, and the conclusion reached that a court of probate, in the exercise of its jurisdiction over the probate of wills and the administration of estates of deceased persons, had no jurisdiction to appoint an administrator of a living person, and that the appointment of an administrator, after public notice to the next of kin, creditors and the like of the estate of a living person, who had been absent from the State more than seven
But in the recent case of Cunnius, &c., v. Reading School Dist., 198 U. S. 458, 49 L. Ed. 1125, 25 Sup. Ct. 721, that court, in considering the validity of certain statutes of the State of Pennsylvania “relating to the grant of letters of administration upon the estates of persons presumed to be dead by reason of long absence from their former domicil/’ held that the due process of law clause of the 14th amendment to the Constitution of the United States does not wholly deprive a State of the power to confer jurisdiction on its courts to administer the estates of absentees, irrespective of the fact of death, by special and appropriate proceedings distinct from the general law for the settlement of the estates of decedents. It further held, that fixing the period of a person’s absence from his last domicil within the State at seven years, or more, before his estate could be administered under the special proceedings, was not so unreasonable as to render the statute repugnant to the due process of law clause of the 14th amendment; and that the notice required to be given by order of publication before an administrator could be appointed, and the safe-guards provided for the protection of the property of the absentee in case of his return, satisfied the requirements of the 14th amendment.' But the court expressed the opinion in that case, that a State law which did not provide, among other things, for adequate notice as a prerequisite to the proceedings for the administration of the estate of an absentee would be repugnant to the 14th amendment.
It is said that the expression of the court in that case, that the appointment of - an administrator of the estate of an absentee while he is still living, without adequate notice as a prerequisite
Tested by that rule, a statute which provides for the taking of an absentee’s property and administering it> when he is alive, without his knowledge or consent and in a proceeding to which he is not a party and of which he has no notice, is clearly in violation of his rights under the 14th amendment.
The other assignment of error is that tire trial court ought to have denied the relief sought, because of the long delay of the appellee in asserting his claim.
It has always been a principle of equity to discourage stale demands, and laches is often a defense wholly independent of the statute of limitations. But the rule is adopted because after groat lapse of time, from death of parties, loss of papers, or death of witnesses, there is danger of doing injustice, and there can be no longer a safe determination of the controversy. Tazewell v. Sanders, 13 Gratt. 354; Bargamin v. Clark, 20 Gratt. 544, 553; Rowe v. Bentley, 29 Gratt. 756, 763; Jameson v. Rixey, 94 Va. 342, 346, 26 S. E. 861, 64 Am. St. Rep. 726.
Mere delay is not always laches, and laches in the assertion of a right is not always sufficient to defeat it. The laches must be such as to afford a reasonable presumption of satisfaction or abandonment of the claim, or such .as to prevent a proper defense by reason of the death of parties, loss of evidence, or otherwise. Tazewell v. Sanders, supra, 362; Jameson v. Rixey, supra, 346, and cases cited. Whether the lapse of time is sufficient to bar a recovery must of necessity depend upon the particular circumstances of each case. Aylett v. King, 11 Leigh, 486; Rowe v. Bentley, supra, 763; Bell v. Wood, 94 Va. 677, 683, 27 S. E. 504.
Tested by these general principles, the facts of this case do
We .are of opinion that there is no error in the decree appealed from, and that it should be affirmed.
Affirmed.