Wisconsin Trust Co. v. Wisconsin Marine & Fire Insurance Co. Bank
81 N.W. 642
Wis.
1900
Check Treatment
Bardeen, J.

The only question for determination on this appeal is whether the plaintiff was legally appointed administrator of the estate of said Luebke. The application for administration was made April 23, 1898. The defendant insists that, inasmuch as it is alleged in the petition that Luebke was last seen at Leadville, Colorado, on April 29, 1891, and the application for administration was made April *46823,1898, the full period of seven years had not elapsed from the time that Luebke was last seen alive and the date of the application, and hence the administration proceedings were presumably commenced while he was alive. The difficulty with this contention is that it assumes that the presumption is that Luebke was alive during the entire period of seven, years from the time he was last seen. The presumption of law is that at the expiration of seven years he is dead, but there is no presumption, either of life or death, during that period. Such was the holding in Whiteley v. Equitable L. A. Soc. 72 Wis. 170, and that rule is supported by the weight of authority. 1 Jones, Ev. § 58. The question when such presumed death occurred is to be determined from all the facts and circumstances in the case. The county court has complete and ample jurisdiction in matters of this kind. When application was made for administration upon Luebke’s estate, it became the duty of the judge to determine the fact of Luebke’s death. Without such determination, he had no authority to proceed. A representation, such as is contained in one allegation Qf the petition, that Luebke had last been seen at a period within seven years, standing by itself, with no qualifying circumstances, would not sustain jurisdiction. But there were other facts set out in the petition which it was proper for the court to consider. Luebke was last seen at Leadville,. He was acting queerly. He wanted to be put in an asylum to escape his enemies. He fancied that officers were in pursuit .of him. He left the train somewhere between Leadville, in Colorado, and Ogden, in Utah, leaving his baggage. Strict search was made for him. Printed notices of his disappearance, offering a reward for information as to his whereabouts, were sent but. Photographs of the missing man were also sent out with such notices, and freely circulated in the section of the country where he was last seen. Inquiries were made at all the asylums for treatment of the insane in the West, and yet no word was received from him, and-he has not returned The petition further *469stated that he had been absent from the state, “ and that nothing whatever had been heard, from said Julius Luehke, for the space of seven years.” In view of these circumstances there was ample to warrant the court in the determination arrived at. These facts, with nothing to control the inferences naturally to he drawn from them, presented at least a prima facie case of death, even within the seven years. The presumption of death, of course, was not conclusive, but was sufficient to sustain the conclusion of the county judge, and gave him a colorable right to proceed. If we were to exclude from consideration the facts noted, it is by no means certain that the defendant’s contention could then be sustained. The concluding allegations of the petition quoted would probably have been sufficient to sustain jurisdiction. They are inconsistent with the statement that Luebke had been seen at the time stated, and the court was called upon to determine which of the inconsistent statements was true. The finding. of the court being, as we think, sufficient as to the fact that he had jurisdiction, no good reason is perceived why such conclusion should not be sustained. But when we come to consider the other facts stated, all doubts in this case are removed, and we have no hesitancy in sustaining the ruling of the court below in awarding judgment for plaintiff.

Notwithstanding the question of death may have been determined by the probate court, the fact that the supposed decedent is alive could have been shown. Such showing would have established the nullity of the entire proceeding. Melia v. Simmons, 45 Wis. 334; Brown, Jurisdiction, § 124. But no such showing was made by defendant. Its defense is based entirely upon alleged imperfections in the probate proceedings, which, as we have seen, has no substantial ground to rest upon.

By the Court.— The judgment of the circuit court is affirmed.