delivered the opinion of the court, November 20th, 1882.
Notwithstanding the long absence of Mary B. Devlin, the plaintiff below, from the state of Pennsylvania, and although it may be, as alleged in the statement of the plaintiffs in error, that she had been unheard-of for a period of fifteen years prior to the date of the issuing of letters of administration on her estate, yet the fact turns out to be that at that time she was alive. It follows, that" those who undertook to act upon the presumption of her death must bear the consequences of the failure of that presumption. Let it be that the fact of so long an absence would, in many instances, raise a legal presumption of her death, yet, we presume, no One will contend that this legal presumption might not be successfully rebutted by proof that the person whose death it was thus sought to establish, was in full life. Let us take, for example, a son, under circumstances like those above stated, assuming the death of his father, and, on that assumption, as heir, selling the father’s land. Should the supposed decedent afterwards appear, the title of the son’s vendee would be utterly void ; yet in this hypothetical case, the sale is supposed to be made on a legal presumption, which, so long as it, continues, is-perfectly good, and one on which the vendor might successfully defend in an action for - a breach of the warranty of title. But in the case put, the son’s title breaks down just where the defence to the plaintiff’s claim, in the-case in hand, breaks down — that is, upon a failure of.the presumption upon which the parties acted. Presumptively the son had power to sell, in fact he had no such power; presumptively the register had power to issue letters of adminisT tration on the estate of Mary B. Devlin, but in fact he had no such power. We cannot, therefore, but approve of what was so well said by the learned judge of the court below, i. e., that the presumption interposed by the defendants to defeat the *276plaintiff’s recovery was not even an important element in the case; it was but evidence from which the register might assume the death of Mary B. Devlin, but it was no more conclusive than would have been the testimony of false witnesses to prove the same thing.
. It might, indeed, be true, that were we to concede to the register judicial powers of a general character, as was conceded to the surrogate of the State of New York, in the case of Roderigas v. The East River Savings Bank, 63 N. Y. 460, the decree in the case in hand might be regarded as conclusive until reversed ; but we are not disposed to regard this case as authority ; its standing as such is not only very much weakened by the dissent of three of the seven judges who composed the court, but, as was said by Judge. Redfield, in his note to this ease, 15 Am. L. R. (N. S.) 212, the case is perhaps without precedent either in America or England.
But whatever may be the surrogate’s jurisdiction under the statutes of New York, certain it is that under our Act of 15th of March 1832, the register’s powers are special and limited. By that Act he has power to issue letters of administration on estates of dead persons only, and not on estates of the living. His decrees are final and conclusive until reversed by a superior tribunal, when, under the statute, he has jurisdiction ; but if made without jurisdiction they are worthless and void, and may be impeached in any collateral proceeding.
That this granting of letters upon the estate of a living person, though supposed to be dead, is not only a voidable but a void act, is a legal conclusion supported by abundant authority. In McPherson v. Cunliff, 11 S. & R. 422, Mr. Justice Duncan shows the distinction between those acts of the Orphans’ Court which are voidable only and those which are wholly void. He says, that that which gives jurisdiction to the Orphans’ Court, is the death of the owner of the estate, and that if letters of administration were taken on the effects of a living man, or of one who died testate, the administration would be void, and there would be no administrator to act, no party before the court, consequently all the proceedings would be null; but that where an executor obtains payment on a void will, such payment cannot be impeached, notwithstanding the probate was afterwards declared to be invalid. The distinction between the cases thus stated, he explains by saying, the probate on the will of a living person is ipso facto void, because of the want of jurisdiction, but where the person is dead, the Orphans’ Court has power over his estate, and one acting on the faith of its decrees will be protected.
This is pretty much a re-stateracnt of the case of Allen v. Dundas, 3 Durnf. & East, Term R. 129, 130, in which Justices Asiihukst and Bullek hold precisely the same opinion. So the *277argument made use of by Chief Justice Marshall, in Griffith v. Frazier, 8 Cranch 23, is of like import; he says: “ In the common case of intestacy, it is clear that letters of administration must be granted to some person by the ordinary; and though they should be granted to one not entitled by law, still the act is binding until annulled by the competent authority; because he had power to grant letters of administration in the case. But suppose administration be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others, be dead or in life. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint, with the character or powers of an administrator. The case, in truth, is not one within his jurisdiction. It is not one in which he has a right to deliberate. It was not committed to him by law, and although one of the points occurs in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction.” At the risk of being considered tedious, I have thus quoted at some length from the opinion of the Chief Justice, for I regard it as settling, so far as persuasive authority can go, the case in hand.
Furthermore, in the case of Jochumsen v. Suffolk Savings Bank, 3 Allen 87, we have a case directly in point. In that case it was held, by the Supreme Court of Massachusetts, that a depositor in a savings bank might recover a deposit, though the amount had been previously paid to an administrator appointed under the erroneous presumption of the depositor’s death arising from his absence for more than seven years without being heard from.
Dewey, Justice, who delivered the opinion, fully sustains the judgment of the court by an able argument and the citation of numerous authorities. To my mind, he very clearly proves that the decree of a probate judge in granting letters, under the circumstances stated, may be collaterally attacked and avoided for the want of jurisdiction. He remarks, inter alia, the position is that seven years’ absence from home without being heard from, authorizes the probate judge to treat the case as though the party were dead. But he exposes the error contained in this proposition by calling attention to the fact, that the circumstances alleged are but evidences of death, and that they may be rebutted by showing the fact to be otherwise; hence, the presence of the supposed dead man leaves no ground on which to support the jurisdiction. We think this is - sound reasoning and worthy of our adoption. Under a contrary doctrine a living man might bo obliged to stand by and see the administration of his own estate, or he might be forced to cite *278liis executor or administrator to account in order that he might be enabled to get possession of the remains of his own property.
Among several cases, to which our attention has been directed by the counsel for the plaintiff in error, is that of Miller v. Beates, 3 S. & R. 490, where, on the presumption of the death of one John G. Schlosser, arising from absence of many years without being heard from, a legatee over was permitted to recover without being required to give a refunding bond. Here, however, there was no pretence in the way of evidence to rebut the presumption óf the death of the first taker, hence, nothing to impeach the decree of the .register. More than this, the executor was fully protected by the judgment of a court having undoubted jurisdiction over the parties, and whose judgment could not be collaterally contested. There is, therefore, no kind of analogy between this case and the one iii hand. Had John E. Devlin been compelled, by a court of competent jurisdiction, to have paid to the administrator the money in controversy, his case would have been very different, but having voluntarily, made payment to one whose authority was, at best, but prima facie, he assumed all risks, and must now bear the consequences of the failure of that assumption.
The judgment is affirmed. .