The question to be determined in this case is, whether payment to an administrator, duly appointed by the surrogate as the law directs, of a person supposed to be dead, and who it subsequently appears was living at the time when letters were granted, is valid and conclusive against an administrator actually appointed after the decease of the intestate.
The right to letters of administration upon the estate of a deceased person is regulated by statute, and it is provided that "before any letters of administration shall be granted on the estate of any person who shall have died intestate, the fact of such person's dying intestate shall be proved to thesatisfaction of the surrogate, who shall examine the personsapplying for such letters on oath, touching the time, place andmanner of the death, and whether or not the party dying leftany will, and he may also, in like manner, examine any other person, and may compel such person to attend as a witness for that purpose." (2 R.S., 74, § 26.) The first part of the section cited makes provision for proof of death and intestacy in all cases to the satisfaction of the surrogate, and the latter portion for an examination as to the death, the circumstances connected therewith, and as to the fact whether the party dying left a will. The foundation upon which the proceedings rest are death and intestacy, and both of these must be satisfactorily established. Sufficient evidence must be furnished to afford a reasonable presumption and to satisfy the officer of these essential facts. When this is done according to the rules applicable to such cases, the surrogate is legally bound to grant the letters applied for. He is obligated to perform this duty, which is judicial in its character, and carries with *Page 471 it the sanction of lawful authority. Such an application is a trial by the officer named of the fact of the death and intestacy of the person whose estate is sought to be administered upon. It is only to be made upon notice to the heirs at law and next of kin, or to such parties as the law directs; but when the proof is furnished as the law requires, the surrogate would not be authorized to disregard the evidence and deny the application. He has no alternative but to issue the letters demanded, and upon a refusal to do so, his decision would be the subject of review in an appellate tribunal and, if adverse to the plain proof, liable to reversal.
The statute also provides that letters "granted by any officer having jurisdiction, shall be conclusive evidence of the authority of the persons to whom the same may be granted, until the same shall be reversed on appeal or revoked, as in this chapter provided." (2 R.S., 80, § 56.) A subsequent provision declares that all sales made in good faith and all lawful acts done by administrators before notice of a will, or by executors or administrators who may be removed or superseded, etc., shall remain valid, and shall not be impeached by any subsequent revocation or superseding of the authority, etc. (2 R.S., 79, § 47.) The effect of these last provisions must depend upon the construction to be given to the section first cited as to the jurisdiction thereby acquired. They were evidently incorporated into the statute as part of an entire system, and may properly be considered together. The power and the duty of the surrogate to issue the letters upon satisfactory proof being furnished, is very clear, and the point to be determined is, whether he had no jurisdiction because it subsequently turned out that the alleged intestate was living. It is, no doubt, true that the surrogate has no jurisdiction to grant letters upon the estate of a living person; but a mode has been provided by law to test the fact whether a person is deceased, and as the legislature has enacted how this shall be done, and as the adjudication of a competent tribunal must stand when jurisdiction is acquired until reversed or superseded, as the law *Page 472 requires, it is not apparent that such a determination is invalid and without jurisdiction. If the statute (§ 24, supra) had provided only for the issuing of letters, and not proceeded to state what proof was required, it might well be argued that no jurisdiction was acquired. So, if the surrogate had issued the letters without the requisite proof, the same result would follow. As, however, it does declare what proof must be given, it is difficult to determine how its effect can be avoided, because it afterward is made to appear that there was a mistake, or that the evidence was false and untrue. While this may furnish sufficient ground for issuing new letters superseding those first issued, it cannot render all which has been done under the first void and of no effect.
The legislature has conferred upon the surrogate of each county in the State sole and exclusive jurisdiction within the county to grant letters of administration of the personal estate of persons dying intestate. It has given authority and provided what proof shall be given upon an application for letters, and that the surrogate shall be satisfied before he grants the same. The power of the legislature to enact laws in reference to the administration of the estates of deceased persons cannot be doubted. And as incident to that power, it is entirely competent to authorize the tribunal constituted for such a purpose to pass upon the question of fact and determine, what it is often difficult to ascertain, whether the person whose estate is the subject of the application is living or dead. It must be determined by some tribunal before letters can be granted, and no satisfactory reason is given why the legislature should not declare by statutory enactment the mode in which it shall be done and the effect of such a determination. Cases arise where death takes place under circumstances where no living witness can be produced to testify to the fact. Parties disappear suddenly, with no trace of their whereabouts. They are sometimes lost, or supposed to be lost, at sea, or are so long absent from their homes and from communication with relatives and friends as to raise a presumption that death has taken *Page 473 them away. If the doctrine can be upheld that in such cases there is no power to confer jurisdiction to decide the question as to the death of such persons, then there would be no method existing to dispose absolutely of estates among those who are entitled to the same after death has been judicially determined. And even after the avails are distributed among creditors by virtue of a judgment of a competent court, and payment of debts made by a legally authorized representative, the parties receiving the same may be compelled to refund, discharges of liens on real estate set aside to the detriment of innocent parties, the title to real estate sold by order of the surrogate vacated, and the most inextricable confusion ensue. It cannot well be claimed that the legislature has not the power to provide safeguards for the protection of innocent third parties who act under the decree of a competent court, and thus remedy the evils which would flow from a want of such power. Enactments to guard against such consequences cannot be regarded as divesting a person of his property, or interfering with rights, without due process of law, in violation of a constitutional right. At most, such laws are but regulations in regard to a subject of general interest to the entire community, and are essential for the welfare of society, the promotion of justice, and the proper administration of estates. In the case at bar it was no fault of the defendants that they paid the demand to an administrator duly qualified, and the blame, if any, rests with the party who, by a long absence, placed himself in a position where he was supposed to be dead. At common law absentees, not heard from within seven years, are presumed to be dead.
The power of the legislature to pass laws providing for the vesting of estates in certain cases, upon the presumption of death, has been exercised for a long period of time, and never questioned. (1 R.S., 749, § 6.) Nor has it ever been doubted that a second marriage may be made valid by statute after an absence for a sufficient period of time. (2 id., 139, § 6; Cropsey v.McKinney, 30 Barb., 47.) The statutes *Page 474 cited affect important rights, and if such cases can be provided for, then no valid reason exists why laws may not be enacted which will authorize the granting of administration upon the estates of persons proved to be dead, and whose voluntary absence has led to that conclusion. While a person is thus absent, creditors may attach his property, the State may dispose of his real estate by a sale for taxes, and the local authorities of a municipality by an assessment sale. Administration does not go as far as this, but simply changes the condition of his personal estate upon the proper security being given. The property is not confiscated, lost or misappropriated, but merely placed in the hands of a proper person to dispose of as the law directs. True, the security taken may become irresponsible, but this may happen in case of actual death, and hence is no argument against the power of an administrator appointed by a competent tribunal.
The letters were ample authority to receive the money and justify the payment; and had the defendant refused to pay, no defence could successfully be interposed to a suit brought. The decision of the surrogate, with sufficient evidence to establish death, was a judicial determination, and is a protection to all persons acting in good faith by virtue of the letters issued by him. In Porter v. Purdy (29 N.Y., 106), it was held, that the proceedings in courts, or before officers of limited jurisdiction, in regard to a particular fact, and which are in the nature of adjudications, if erroneous, must be corrected by a direct proceeding for that purpose, and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be. This doctrine was applied to freeholders appointed to assess the expense of a sewer, and may be especially invoked in a case where a competent tribunal has acted judicially in reference to a subject by virtue of authority expressly conferred by law. (See, also, 2 Harr. Gill, 42; Noell v. Wells, 1 Lev., 235.) In Allan v.Dundas (3 T.R., 125), it was held that payment of money to an executor *Page 475 under a forged will was valid, although the probate was afterwards declared null, and administration granted. Some remarks are made to the effect that the ecclesiastical court has no jurisdiction during the life of a party. This doctrine, however, has no application to cases for which provision is made by a statutory enactment. Sheldon v. Wright (1 Seld., 497), is also relied upon by the plaintiff's counsel. It was an action of ejectment where title was acquired by virtue of proceedings in a Surrogate's Court. Some remarks are made in the opinion to the effect that the provisions of the Revised Laws of 1813, which differed considerably from the Revised Statutes in reference to Surrogates' Courts, are directory; but the distinct question now raised was not presented, and therefore it cannot be considered as authoritative and controlling. Bolton v. Jacks (6 Robt., 166), involved the question as to the regularity of the probate of a will before a surrogate in a different county from that in which the testator died. The same question arose in Merrill v.Dennison (8 Abb., 401); Bolton v. Brush (id., 389), in each of which cases the decision was in conflict with Bolton v.Jacks.
In Jochumsen v. Suffolk Savings Bank (3 Allen, 87), the question now raised was distinctly presented upon facts almost precisely similar to the case now considered, and it was held that payment to the administrator of the living man was no defence to the suit brought by him. There was no statute in the State of Massachusetts making special provision in regard to the subject as there is here, and therefore it has no application. In reference to this case as well as other cases which uphold the same doctrine, it may also be remarked that they were disposed of without regard to any statutory regulation which conferred upon a tribunal organized for that purpose, within the jurisdiction where they were decided, authority to investigate, pass upon and decide the question, whether a person whose estate was sought to be administered upon was deceased. Such was the object and purpose of the statutes cited, and independent of any rule which may have otherwise prevailed where no tribunal was *Page 476 vested with power to determine the question of death, they must be regarded as conclusive.
The judgment rendered must be reversed and a new trial granted, with costs to abide the event.
For reversal, RAPALLO, ANDREWS, MILLER and EARL, JJ.
For affirmance, CHURCH, Ch. J., ALLEN and FOLGER, JJ.
Judgment reversed.