Baker v. Fidelity Title & Trust Co. , 55 Pa. Super. 15 ( 1913 )

Opinion by

Henderson, J.,

The appellant’s statement of the question involved limits our examination to a consideration of the question whether when a husband is presumed to be dead by the lapse of seven years after he was last heard from his widow is entitled to take her share in the real estate under the intestate acts or should the rents and profits thereof be paid through the medium of an administrator appointed under the Act of June 24, 1885, P. L. 155. The argument submitted extends the discussion and supports the contention that although a presumption of death arises after an unaccounted for absence of seven years there is no presumption as to the time when death actually occurred within the seven years and inasmuch as the plaintiff’s husband was last heard from less than seven years before the death of his foster mother from whom he inherited the land in question there is neither evidence nor presumption that the husband was living at the date of the foster mother’s death and if not then living no title descended to him at her death. This question is not now open to debate, however. It has been persistently held since the decision in Burr v. Sim, 4 Whart. 150, that the presumption of death must be taken to run exclusively from the termination of the prescribed period so that the person must be presumed to have then been dead and not before. Whiteside’s Appeal, 23 Pa. 114, and Esterly’s Appeal, 109 Pa. 222, followed in the same line and in Schoneman’s Appeal, 174 Pa. 1, it was held that the decision in Burr v. Sim and the-cases following it established a rule of property in this state which cannot be changed without disastrous consequences. McCausland’s Estate, 213 Pa. 189, which the learned counsel for the appellant cite as disturbing the rule as declared in Burr v. Sim has not the effect attributed to it. That was a case arising on the distribution of an estate in the orphans’ court where the validity of a second marriage was involved. The wife having contracted a second marriage within seven years after the disappearance of her first husband and the question of the validity of the second marriage having arisen more than seven years after her first husband was last heard from it was said by the court in considering one of the questions raised that though seven years must elapse before the presumption of death arises when this period does elapse there is no presumption as to the time when during the seven years the death of the absent party actually occurred and therefore to help the presumption of innocence or legitimacy there is no presumption that it occurred after the second marriage but rather that it occurred before. This was a statement in another form of the rule that the presumption is in favor of legitimacy and of the validity of the second marriage as not having occurred prior to the death of the absent husband. One presumption encountered another; the presumption of the validity of the marriage overcame the presumption of the continuance of life of the man who had disappeared. . This was not intended, however, to impair the force of the principle established in the cases cited or to disturb the titles resting thereon. It is conceded in the argument of the appellant’s counsel that if the bill for partition can be sustained because of the presumption as to the time of the death of Frank Baker the appellant must account to some person for the arrearages of dower the only question being whether n is to account to the plaintiff or to an administrator of Baker’s estate under the act of 1885. Its only interest is to avoid payment to a party not entitled to receive the fund. The act of June 24, 1885, relates to the granting of letters of administration on the estate of persons presumed to be dead by reason of long absence from their former domicile. It provides a mode of administration of such property as would come into the hands of an administrator, but the proceeding now under consideration is not for the collection or conservation or administration of Baker’s estate; it is a proceeding to partition his estate and that which the appellee is demanding is her property and never was a part of the estate of Baker. It came into being after he died. When the presumption of death arose the rights of his widow took effect and as no appeal is taken from the decree in partition by the widow or the heir it does not appear that the interests of the appellant are in any wise prejudiced. The contention that it may hereafter be discovered that Frank Baker is alive is one which might be made with propriety after an accounting when the money is to be paid over, but until that time the accountant incurs no risk and is not subjected to any prejudice. The action is not against the estate of the missing husband but against the heir at law for the settlement of a property right and is in its general features a proceeding in rem as to which the jurisdiction of the court is unquestioned.

The assignments are overruled and the decree affirmed at the cost of the appellant.