The action is to recover deposits made by sundry persons in the Pontiac Commercial Savings Bank, now in receivership, on the ground that they have escheated to the State of Michigan.
May 4, 1936, the State public administrator filed petition in probate court for the appointment of plaintiff as administrator of assets of 30 persons who were depositors of the Pontiac Commercial Savings *Page 409 Bank, but whose accounts were dormant as they had had no dealings with the bank with relation thereto for a period of more than seven years. Without any hearing, and on the same day, the probate court appointed plaintiff administrator of all such estates, in one proceeding, because they aggregated less than $500 in value (Act No. 45, Pub. Acts 1933), issued letters of administration to him, he made demand on defendant receiver for the deposits and the demand was refused. On motion, the court dismissed the action.
The petition was filed under the general escheat law, 3 Comp. Laws 1929, § 13455 et seq., and additions and amendments thereto, being Acts Nos. 45, 171, Pub. Acts 1933.*
The court held Act No. 171, Pub. Acts 1933, in violation of the Constitution. We need not pass upon its validity, both because plaintiff states that he does not rely upon the act and because such determination is not necessary to decision of the case.
The principal question is whether Act No. 45, Pub. Acts 1933, permits appointment of administrator without preliminary notice of hearing.
Section 10 (3 Comp. Laws 1929, § 13464) of the general escheat act provides for appointment of administrator for the estate of a person who has deposited money or securities with another, has had no dealings with the depository in connection therewith for seven years, and when there is good reason to believe that he is dead. Section 13 (3 Comp. Laws 1929, § 13467) provides for administration of the estate of a person who disappears, whose whereabouts remain unknown for seven years, of whom no knowledge can be procured, who is then presumed to be dead, and whose heirs are not found. *Page 410
By reference to sections 13457 and 13458, section 10 provides that the administrator shall be appointed in accordance with the general statutes covering administration of estates of deceased persons. These general statutes, sections 15602 and 15538, require notice to interested persons of the hearing on appointment of administrator by personal service 14 days before date of hearing or by publication for three weeks. In the administration of estates of persons presumed to be dead because of absence for seven years, publication of the notice of hearing of petition for administration must be had for four months. 3 Comp. Laws 1929, § 15629.
Act No. 45, Pub. Acts 1933, added two sections to the general escheat law. Section 10a provides that if there are no known heirs, it shall be sufficient proof for the purposes of escheat if it appears from reliable sources, or from the books of the depository, that the missing or disappeared person has had no dealing with the depository for a continuous period of seven years in regard to the deposit; and
"Provided, however, That within thirty days after the granting of administration upon the application by the attorney general or by the State public administrator, notice of the granting of such administration shall be published in the form of similar notices in the administration of the estates of deceased persons: Provided further, That additional publications shall be made once each calendar month for two months prior to the date of the final hearing for the closing of the estate: Provided further, That no other or additional proof or publication shall be required for the purposes of escheat under section ten and thirteen of this act except as herein provided."
Plaintiff contends that section 10a eliminates the necessity of other proof of death or disappearance *Page 411 than a deposit seven years quiescent and of notice to interested parties of hearing on appointment of an administrator. Defendant contends, with much force, that such construction would cause the act to violate the due process clause of the Constitution.
Plaintiff's construction is not demanded by the language of the act and ought not to be adopted because of its untoward possibilities. It would not only destroy the harmony of probate practice adopted by the escheat law, both by providing the probate method of escheating property and by express terms, but would abrogate the fundamental right of a person to notice of a proceeding affecting his property before it is taken into the control of another, burdened with expense, and especially without providing a remedy for its recovery without loss to him. Moreover, it would permit the appointment of an administrator of the estate of a living person without notice to him, actual or constructive, and for no other fault than that he was content to let his deposit rest in peace for seven years. It so happened at bar. Two of the alleged "departed" have lived continuously for 60 years in the community. One of the "deceased" denies, on oath, that she is dead.
It will be noted that the proviso requires publication of notice of granting of administration in the same form as "similar notices" (i. e., of the granting of administration) in the administration of estates of deceased persons. In the absence of language definitely abrogating advance notice of hearing of the appointment of administrator, the evident construction of the last proviso is that it has no reference thereto but applies only to notices after the administrator is appointed. This is particularly so because section 10a (Act No. 45, Pub. Acts 1933) does not purport to amend or modify section 10 (3 *Page 412 Comp. Laws 1929, § 13464), but is merely added thereto.
Consequently, we hold that Act No. 45, Pub. Acts 1933, does not obviate the necessity of personal or substituted notice of appointment of an administrator in accordance with the general statutes and plaintiff was not legally appointed.
Judgment should be affirmed, with costs.
WIEST and BUSHNELL, JJ., concurred with FEAD, J. POTTER, J., did not sit.
* Act No. 40, Pub. Acts 1933, also, amended this act. — REPORTER.