Morrison's Estate , 183 Pa. 155 ( 1897 )

Opinion by

Mb. Justice Williams,

This appeal presents a record that is by no means a satisfactory one. Letters of administration were issued upon the estate of C. W. Morrison in November, 1891, under an order of the orphans’ court of Lancaster county which were based on an adjudication by that court that a legal presumption of the death of Morrison had been established under the proceedings authorized by the act of June 24, 1885. Some of the evidence upon which the adjudication was made is furnished to us in the paper books, and it presents the following facts: The alleged decedent, C. W. Morrison, was prior to 1875 a resident of Lancaster county. During the early part of that year he removed to the state of Kansas and settled at Fort Dodge. His brother testifies on this subject: “ I got some letters from him in Kansas prior to 1876. I received one letter from him in September 1876. I answered that letter soon after receiving it and have heard nothing from him since the last letter I wrote to him.” This showed very clearly that the place to look for Morrison was at Fort Dodge, and that the absence that the statute contemplated was from his last known place of residence. This was not Lancaster county. A search made in that county had no significance whatever: Frances v. Frances, 180 Pa. 644. lie must have been absent from, and unheard of at, his last place of domicile which, if this is all the evidence presented to the court below, was Fort Dodge. It is possible, and perhaps we should presume, that other and appropriate testimony was before the court and that its decree was made in view of it, as otherwise the decree could not be supported. But the administrator appointed under the adjudication and decree referred to has finished his work and there is now in the hands of the defendant, the guardian of the son of the supposed decedent, a considerable sum of money. The son is now of age and wishes to come into possession, as the heir at law of C. W. Morrison, of this money. The proper course for him to pursue was to present to the orphans’ court his petition setting forth the facts we have recited, including the appointment of an administrator for his father’s estate under the established presumption of his father’s death, and the raising of the fund then in the hands of his guardian, and asking an order directing its payment to him without his being required to give security for its return, for the reason that his father’s absence unheard from had continued for upwards of twenty years, and still continued.

Upon the hearing on his petition these facts should have been shown, and the effect of this showing should have been passed upon by the court, and the order should thereupon have been made. In the case before us the petition contains no reference to the administration or to the proceedings under the act of 1885, makes no averment about the length of the absence of Morrison, and sets up no right to the money based upon his presumed death. Had not the answer presented some of the facts there would have been nothing before the court to call its attention to the question involved, or the possible effect of the decree it was asked to make. The learned judge of the orphans’ court, with great patience and entire disregard of form, took notice of the question raised by the answer, and entered upon a careful consideration of it. The result of this consideration is embodied in his opinion in which he goes over the former action of the court, the continued absence of the alleged decedent, covering a period of more than twenty-one years, and concludes that the presumption of actual death has now arisen. He then directs the payment of the money by the guardian to its ward without requiring security for its return. This decree rested on the right ground, but it is informal. It should include an adjudication upon the effect of the prolonged absence of Morrison, and the order for the payment of the money should rest upon that adjudication, just as the order for the appointment of the administrator rested on the adjudication upon the effect of absence from his last place of residence for seven years unheard from. To understand the decree appealed from it is necessary to treat the entire opinion of the learned judge as a part of it. This is not good practice and ought not to be encouraged, but under the special circumstances of this case we are disposed to think that no harm can come from its affirmance' on that basis.

It is accordingly affirmed: the record costs to be paid from the fund.