Stevenson v. Superior Court

McKee, J. concurring:

I concur. Administration of the estate of a living person is void, ab initio and throughout. The only jurisdiction a Probate Court has in respect to the administration of estates is over the estates of deceased persons. It has no jurisdiction whatever to administer the estates of living persons as if they were dead. Cases in support of these plain propositions abound in the books. For it has often happened that many “Enoch Ardens” have had to assert in the Courts their right to property of which they have been, in their absence, unlawfully deprived by void proceedings against them in Probate Courts. In addition to those cited by Mr. Justice Boss, the cases of M’Pherson v. Cunliff, 11 S. and R. 422; S. C., 14 Am. Dec. 642; Appeal of Peebles, 15 S. & R. 42; Wales v. Willard, 2 Mass. 120; Smith v. Rice, 11 id. 507; Bolton v. Jacks, 6 Bobt. 166; Morgan v. Dodge, 44 N. H. 255; Melia v. *65Simmons, 45 Wis. 334; and D’Arusment v. Jones, 4 Lea, 25, will be found instructive and conclusive upon the question involved in the present case. I know of no case opposed to the doctrine of those cases except it be the case of Roderigas v. East River Savings Institution, 63 N. Y. 460. In that case the Supreme Court of New York held that money paid to the administrator of a supposed decedent could not be recovered back, although it appeared that at the time of issuing the letters of administration the party was not dead. But in Lavin v. The Emigrant Industrial Savings Bank, 18 Blatch. 1, in the Circuit Court of the United States for the State of New York, it was decided that that case had no support elsewhere in the authorities of the English or American Courts. A living person, says the Court, can not be concluded by a Surrogate’s decision that he is dead. As to him, such a decree is absolutely void, and he may claim his property as taken from him “without due process of law.”