Opinion
No. 33432
Decided December 23, 1953.
Executors and administrators — Proceeding to determine heirship — Section 10509-95 et seq., General Code (Section 2121.01 et seq., Revised Code) — Surviving spouse claiming to be sole heir — Burden of proof — Presumed Decedents' Act — Section 10509-25 et seq., General Code (Section 2123.01 et seq., Revised Code) — Provisions of, not applicable, when — To fix date of death in determining right to inherit.
1. Where a surviving spouse claims to be the sole heir of his deceased spouse in regard to a certain estate, such surviving spouse has the burden of proof that the deceased spouse survived a third person from whom the deceased spouse would have inherited such estate in the event of such survival.
2. The provisions of the Presumed Decedents' Act (Section 10509-25 et seq., General Code [Section 2121.01 et seq., Revised Code]) may not be applied to determine the date of death of a person, who has been absent from the place of his last domicile for more than seven years, so as to make such date subsequent to the death of another person from whom such absentee would have inherited an estate had he survived such other person, and thus make such date available as an item of evidence in the determination of the right to share in the estate of such other person.
3. In a proceeding to determine the participants in the estate of an actual decedent (Section 10509-95 et seq., General Code [Section 2123.01 et seq., Revised Code]), the provisions of the Presumed Decedents' Act are not applicable in presumptively fixing the date of the death of one who if living would have the right to participate in the estate of the actual decedent.
APPEAL from the Court of Appeals for Columbiana county.
This is an action instituted on December 29, 1949, in the Probate Court of Columbiana County by the administrators of the estate of Rollin B. Finley to determine the participants in such estate, including the determination whether Polly Keith and Ira F. Keith were or are entitled to share in the estate.
Polly Keith, the wife of Ira F. Keith and an aunt of decedent Finley, resided in Pittsburgh, Pennsylvania, prior to 1927. In February of that year, she, being then 52 years of age, disappeared and has not been heard of or from since. If she were living at the time of the death of decedent Finley, she would have been or would be entitled to a distributive share of his estate. Ira F. Keith, now living, filed an answer claiming that he is the surviving spouse and the only heir of Polly Keith, and that he is entitled to her distributive share in the estate of decedent Finley.
The Probate Court first heard the case and entered a decree on March 10, 1950. On appeal to the Court of Appeals that court reversed the judgment and remanded the cause to the Probate Court for further proceedings. The case was again heard in the Probate Court on December 21, 1950, and judgment entered. That court, on motion therefor, granted a new trial and the case was again heard and determined for the third time on October 8, 1951.
On the last hearing on the merits, the Probate Court found that certain persons — not including Ira F. Keith and Polly Keith — were the heirs at law of decedent Finley and entitled to inherit his estate. No specific finding was made as to Polly Keith, but, as to Ira F. Keith, the court found that he "is the surviving spouse of Polly Keith as alleged in his answer, but the court find from the evidence adduced that the defendant, Ira F. Keith, failed to establish that Polly Keith survived the decedent, Rollin B. Finley, and thus is not an heir of the said Rollin B. Finley."
Subsequently, Ira F. Keith filed a motion for new trial and, after term, Ira F. Keith, and Frederick Baker as administrator of the estate of Finley, filed a motion for new trial on grounds of newly discovered evidence. On June 20, 1952, while these motions for new trial were pending, Frederick Baker and Lucille Baker, claiming to have been appointed administrators of the estate of Mary Finley Keith (otherwise known as Polly Keith) on March 5, 1952, and claiming that as such administrators they have an interest in the distribution of the estate of decedent Finley, filed a motion to be made parties defendant in the action.
On July 2, 1952, the Probate Court overruled both motions for new trial; sustained the motion of Guy Mauro, as one of the administrators of the estate of decedent Finley, to open the case to correct the journal entry of October 8, 1951; and entered a new decree as to the proportional shares of the participants in the estate without disturbing the prior finding that Ira F. Keith is not entitled to participate in the estate.
Upon appeal to the Court of Appeals by Ira F. Keith, and Frederick Baker and Lucille Baker in their capacity of administrators, that court affirmed the judgment of the Probate Court.
The cause is now in this court on the appeal of Ira F. Keith and Frederick Baker, by reason of the allowance of a motion to certify the record.
Mr. Charles McCorkhill and Mr. Guy Mauro, for appellees.
Mr. F.E. Hunter, for appellants.
Although Polly Keith and her unknown heirs, devisees, legatees, administrators, executors and assigns were made parties defendant and were served by constructive service, the court in its entry made no specific finding as to the heirship of Polly Keith in the estate of decedent Finley, but, in effect, found that she was not an heir at law in excluding her from the list of other persons who the court found were the heirs at law as to decedent Finley's estate.
The administrators of the estate of Polly Keith failed to appeal from the overruling of their motions to be made parties, and we are not concerned with the individual rights of Polly Keith in this action. If she were not living at the time service was attempted to be made upon her by publication, any rights of her estate in the estate of decedent Finley probably remain undetermined. Although the principal assignment of error made by the appellants is that the Probate Court erred in finding that Ira F. Keith and Polly Keith were not entitled to share in the estate of decedent Finley, that court, in its entry, made no finding as to the heirship of Polly Keith, and, therefore, this assignment is to be considered as applicable only to the Probate Court's finding that Ira F. Keith was not entitled to share.
In order to establish his right to participate in the estate of decedent Finley, it was necessary for Ira F. Keith to show that his wife, Polly Keith, survived such decedent. The burden was upon him to establish that fact. This court is in agreement with the Probate Court and the Court of Appeals that he failed to do so. The only evidence offered on that subject was that Polly Keith disappeared in 1927 and has not since been heard of. There was absolutely no evidence that she died after the date of the death of decedent Finley.
However, Ira F. Keith sought to have the court accept a presumption of her death as of a date after the date of the death of decedent Finley. Another of his assignments of error is "that the court erred in assuming the right to declare * * * Polly Keith presumed dead prior to the death of Rollin B. Finley in a proceeding to determine heirship under G.C. Section 10509-95 et seq." He contends that the following provisions of the Presumed Decedents' Act are applicable:
"Section 10509-25 [General Code]. Hereafter, whenever any person shall be presumed to be dead on account of seven or more years' absence from the place of his or her last domicile * * * any person entitled under the last will and testament of such presumed decedent or under the intestate laws, to any share in his or her estate within this state * * * may present a petition to the Probate Court of the county of such person's last residence * * * in the Probate Court of the county where the greater part of his property within this state may be situated, setting forth the facts which raise the presumption of death. The said court, if satisfied as to the person who would be entitled to letters testamentary or of administration were the presumed decedent in fact dead * * * will hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof."
"Section 10509-27. At the hearing in either of the cases provided for in the preceding sections of this act, the Probate Court shall take such legal evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established; or may appoint a master to take such testimony * * *.
"Section 10509-28. If satisfied, upon such hearing, or upon the report of such master, that the legal presumption of death is made out, the court shall so decree, and the presumption of death shall be regarded as having arisen as of the date of such decree. * * *" (Italics supplied.)
Ira F. Keith claims that in connection with the hearing of this cause it was the duty of the Probate Court under the evidence to find presumptively that Polly Keith was dead and that her death occurred as of the date of the decree of the court, which date of course was subsequent to the date of the death of decedent Finley. Incidentally, there is some statement in the briefs of counsel to the effect that there was a proceeding in the Probate Court under favor of the Presumed Decedents' Act, whereby a decree was entered fixing the date of death of Polly Keith as of March 3, 1952, which was a date later than the date of the death of decedent Finley, but no such record was offered in the evidence in this case and it is not a part of the record before this court.
The instant action was brought under the provisions of Section 10509-95 et seq., General Code, to determine the participants in the estate of decedent Finley and is not in any respect an action relating to the estate of Polly Keith. The Presumed Decedents' Act provides for an independent proceeding with an elaborate procedural technique for the purpose of administering an estate of one who is presumed to be dead on account of seven or more years absence from the place of his last domicile. We see in it no legislative intent to apply it for the purpose of determining participation in a decedent's estate at the whim of would-be heirs at law in respect to other estates. In view of the time schedule of notices to necessary parties and their identities in the Presumed Decedents' Act, the Probate Court in the instant case had no jurisdiction to apply such act in determining the participants in the estate of decedent Finley.
Although the evidence introduced in the instant case, plus the common-law presumption arising after seven years absence, indicated the death of Polly Keith, the Probate Court, in an action to determine heirship, is concerned only with evidence as to whether she survived decedent Finley and, thereby, became his heir at law.
The Probate Court was justified in finding that Ira F. Keith is the surviving spouse of Polly Keith; that he failed to establish that Polly Keith survived decedent Finley; and that he (Ira F. Keith) is not entitled to participate in the estate of decedent Finley.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.