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of her death, made application to the / supreme court of Pennsylvania, on appeal, register of wills, under the statute to which reversed the judgments of the court below, We have just referred, for letters of adminis- and decided that the statute was a valid extration. After the reference of the matter ercise of the police power of the state, and, to the orphans' court, as required by the therefore, both as to form and substance, statute, and the making of the publication, was not repugnant to the 14th Amendment. and compliance with the other requisites of 206 Pa. 469, 98 Am. St. Rep. 790, 56 Atl. 16. the statutes, the letters of administration In their ultimate aspect the assignments which the statute authorized were granted. of error and the propositions based on them Under the authority thus conferred the ad- all rest on the assumption that the state of ministrator collected from the Reading Pennsylvania had no jurisdiction over the school district the arrears of interest which person or property of the absentee, and had accrued on the right of dower of Mrs. therefore the proceedings for the appointSmith, from the date of the last payment ment of the administrator and all acts done made to her before her disappearance on by him were void and subject to collateral April the 1st, 1888, down to the time of the attack. But to uphold this contention, in appointment of the administrator. The ad- a broad sense, would be to deny the posministrator gave the school district a receipt session by the various states of powers and discharge. In 1899 Mrs. Smith sued which they obviously have the right to the Reading school district in the court of exert. That the debt due the absentee by common pleas of Berks county to recover the school district, resulting from the estabthe arrears of interest which had been paid lishment of her dower, was within the jurisduring her absence to the administrator ap- diction of the state authority, is clear. It pointed by the orphans' court. And the would undoubtedly have been subject to adproof in the suit developed that at the time ministration under the laws of Pennsylvania the proceedings against her as an absentee had the absentee been in fact dead. Wyman were initiated, and when the administrator v. Halstead (Wyman v. United States), 1 was appointed, she was living in Sacra- U. S. 654, 656, 27 L. ed. 1068, 1069, 3 Sup. mento, California. The school district re

The school district re- ct. Rep. 417; Sayre v. Helme, 61 Pa. 299; lied for its defense upon the payment of the Mansfield v. McFarland, 202 Pa. 173, 174, 51 interest made to the administrator, and the Atl. 763. The debt was certainly subject to discharge which that officer had given under taxation, and, being so subject, had it been the law. Mrs. Smith asserted that the pro-taxed, the state would have had power to ceedings in the state court and the receipt provide remedial process for the collection of of the administrator furnished no protection the tax. Savings & Loan Soc. v. Multnomah to the school district, because, as she was County, 169 U. S. 421, 428, 42 L. ed. 803, alive when the proceedings for adminis- 805, 18 Sup. Ct. Rep. 392; Bristol v. Washtration were taken in the state court, those ington County, 177 U. S. 133, 44 L. ed. 701, proceedings and the law which authorized 20 Sup. Ct. Rep. 585. Moreover, it would them were repugnant to the 14th Amend have been in the power of the state to ment to the Constitution of the United subject the debt to attachment at the States. She, moreover, contended, even al instance of a creditor of the absentee. though there was power in the state to pro- | Harris v. Balk, 198 U. S. 215, 25 Sup. Ct. vide by law for the administration of the Rep. 625, 49 L. ed. — And that the law of property of an absentee, the particular law Pennsylvania would have authorized such an in question was repugnant to the 14th attachment is also clear. Furness v. Smith, Amendment to the Constitution, as it did 30 Pa. 520, 522. It may not also be doubted not provide for adequate notice, and because that the state of Pennsylvania had authority the law failed to furnish the necessary safe to enact an applicable statute of limitations. guards to give it validity. The case went Shrinking from the conclusion to which to a jury upon legal points being reserved. the assertion of the want of jurisdiction in

The trial court decided that Mrs. Smith the state over the debt logically leads, the was entitled to recover, because the Pennsyl- foregoing propositions are not seriously disvania statute did not provide essential puted. It is, however, insisted that they are notice, and was, therefore, repugnant to the not determinative of the power of the state due process clause of the 14th Amendment to provide for the administration of the The superior court, to which the case was property of a person who, having been taken, affirmed the action of trial court on domiciled in the state, has absented himthe ground that, as Mrs. Smith was alive self for an unreasonable time, leaving no when the proceedings to administer her trace of his whereabouts. The contentions estate as an absentee were had, that ad-on this subject are thus stated in the brief ministration was void, and

and the statute of counsel: authorizing it was repugnant to the 14th "In a word, the case before the court is Amendment.

21 Pa. Super. Ct. 340. The' one in which the private property of one person was, without her knowledge or con- of society, it must follow that that which sent, transferred to another, who, in reality, has at all times been conceded to be within had no shadow of a right to it, by virtue of the power of government cannot, in reason, be an ex parte proceeding of which the owner said to be so beyond scope of governmental had no lawful notice. Is it possible that authority that the exertion of such a power such a manifest infringement of the funda- must be held to be a want of due process of mental and inherent rights which belong to law, even although there is no constitutional every person in the use and enjoyment of limitation affecting the exercise of the his private property can be construed to be power. Whilst it may be that under the due process of law?"

Roman law there was no complete and coAgain:

herent system provided for the adminis"If the plaintiff's departure from Pennsyl-tration of the estate of an absentee (Toulvania, and her omission to demand her ar- lier, title 1, No. 379; Duranton, title 1, No. rearages for the period of eleven years, work 384), it is nevertheless certain that absence, an injury to anyone, it was to herself alone, without being heard from for a given length and not to any public right such as would of time, authorized the appointment of a bring this case within the police power of curator to protect and administer an estate. the state. Plaintiff was under no legal

no legal See the references to the Roman law on that obligation to remain in Reading."

subject in Domat, liv. 2, title 2, § 1, No. 13. It will be observed that the propositions That in the ancient law of France, under challenge the authority of the state to enact varying conditions, the same governmental the statute which formed the basis of the right was recognized, is also undoubted. proceedings, not only because it is insisted Journal du Palais Rep. Verbo Absence, p. that there was a complete want of power to 20, from No. 9 to 25. In the Code Napoleon do so, but also because, even if the state had the subject is especially provided for under power, the method of procedure which the a title treating of absence, in which ample statute authorized was so wanting in notice provision is made for the administration of as not to constitute due process of law. the property of the absentee, the law proWe shall consider these objections sepa- viding for, first, the provisional and ultirately:

mately the final distribution of such proper1st. Was the state statute providing for ty in accordance with the restrictions and the administration of the property of an regulations which the title provides. Code absentee under the circumstances contem- Napoleon, bk. 1, title 4, art. 112, et seq. plated by the statute so beyond the scope of Demolombe, in generally treating upon the the state's authority as to constitute a want subject, thus expounds the fundamental conof due process of law within the intendment ceptions from which the power of governof the 14th Amendment? That the amend

That the amendment on the subject is derived: ment does not deprive the states of their “Three characters of interest invoke a police power over subjects within their juris- necessity for legislation concerning this diction is elementary. The question, then, difficult and important subject. First. The is not the wisdom of the statute, but interest of the person himself who has diswhether it was so beyond the scope of mu- appeared. If it is true that, generally nicipal government as to amount to a want speaking, every person is held, at his own of due process of law. The solution of this peril, to watch over his own property, neverinquiry leads us, therefore, to consider the theless the law owes a duty to protect those general power of government to provide for who, from incapacity, are unable to direct the administration of the estates of ab- their affairs. It is upon this principle of sentees under the conditions enumerated in public order that the appointment of tutors the Pennsylvania law. We do not pause to to minors or curators to the insane rests. demonstrate, by original reasoning, that the It is indeed natural to presume that a perright to regulate concerning the estate or son who has disappeared, if he continues to property of absentees is an attribute which, exist, is prevented from returning by some in its very essence, must belong to all obstacle stronger than his own will, and governments, to the end that they may be which, therefore, places him in the category able to perform the purposes for which of an incapable person, whose interest it is government exists. This is not done, be- the duty of the law to protect. And it is cause we propose rather to test the question for this reason that the provisions as to by ascertaining how far such authority has absence in the Code are placed in the been deemed a proper governmental at- chapter treating of the status of persons, tribute in all times and under all conditions. because the absentee, in the legal sense, is a If it be found that an authority of that person occupying a peculiar legal status. character has ever been treated as belonging Second. The duty of the lawmaker to conto government and embraced in the right to sider the rights of third parties against the protect and foster the well-being and order 'absentee, especially those who have rights

.

which would depend upon the death of the, in the margin,t and special reliance is absentee. Third. Finally, the general inter- placed upon the decision of this court in est of society which may require that Scott v. McNeal, 154 U. S. 34, 41, 38 property does not remain abandoned with-L. ed. 896, 900, 14 Sup. Ct. Rep. 1108. out some one representing it, and without We are of opinion, however, that the an owner.

cases relied upon, with one or two exAnd it may not be doubted that the power ceptions, hereafter to be noticed, are into deal with the estate of an absentee was apposite to this case. The leading cases recognized and exerted not only by the com- were reviewed in Scott v. McNeal, and their mon law of Germany, but also by the codes inapplicability to the present

the present case will of the various states of the continent of therefore be demonstrated by a brief conEurope. De Saint Joseph Concordance en- sideration of Scott v. McNeal. tre les Codes Civils Etrangers et le Code In that case a probate court in the state Napoleon, vol. 1, page 11.

of Washington had issued letters of ad. Provisions similar in character to those ministration upon the estate of a person of the Code Napoleon were incorporated in who had disappeared, and proceeded to adthe Civil Code of Louisiana of 1808, under minister his estate as that of a dead person, the head of absentees, in book 1 of that upon the presumption of death, which the code, defining the status of persons, and such court assumed had arisen from his absence. provisions have been in force from that day There was no statute of the state of Washto the present time. La. Civil Code, art. ington providing for an administration of 47 et seq. The provisions of that code on the estate of an absentee as such, and the subject were referred to by this court in creating rights and safeguards applicable to Scott v. McNeal, 154 U. S. 34, 41, 38 L. ed. that situation, as distinct from the general 896, 900, 14 Sup. Ct. Rep. 1108. Under the law of the state, conferring upon courts of law of England, as stated in that case, a probate power to administer the estates of presumption of death arose from an absence deceased persons. Referring to the presumpof seven years without being heard from; tion under the law of England of death and whilst it is true, as we shall hereafter arising from absence, it was held that such have occasion to say, that such presumption presumption was not conclusive, and was was not conclusive, and was rebuttable, absolutely rebutted by proof that the person nevertheless the very fact of the presump- who was presumed from the fact of absence tion occasioned by absence, irrespective of to be dead was, in fact, alive. Having estabthe force of the presumption, was a mani-lished this proposition, it was then held, as festation of the power to give legal effect to death was essential to confer jurisdiction the status arising from absence.

on a probate court to administer an estate As the preceding statement shows that as such, the fact of life at the time the ad. the right to regulate the estates of absentees, ministration was initiated conclusively reboth in the common and civil law, has ever butted the presumption, and caused the been recognized as being within the scope of court to be wholly without jurisdiction to governmental authority, it must follow that administer the estate of a person who was the proposition that the state of Pennsylvania was wholly without power to legislate 425, 432; State v. White (1846) 29 N. C. 17

†French V. Frazier (1832) 7 J. J. Marsh. concerning the property of an absentee is Ired. L.) 116; Duncan v. Stewart (1854) 25 without merit, unless it be that the au- Ala. 408, 414, 60 Am. Dec. 527; Moore V. thority of a state over the subject is re- Smith (1858) 11 Rich. L. 569, 73 Am. Dec. strained by some constitutional limitation. 122; Jochumsen v. Suffolk Sav. Bank (1861) That the Constitution of Pennsylvania does 255, 259 ; 82 Am. Dec. 213; Withers v. Patter

3 Allen, 87; Morgan v. Dodge (1862) 44 N. H. not put such a restriction is foreclosed by son (1864) 27 Tex. 491, 498, 86 Am. Dec. 643; the decision of the supreme court of Quidort v. Pergeaux (1867) 18 N. J. Eq. 472, Pennsylvania in this case. But it is insist- 477 ; Melia v. Simmons (1878) 45 Wis. 334, ed, conceding that the state of Pennsylvania 337, 30 Am. Rep. 746; D’Arusment v. Jones

(1880) 4 Lea, 251, 40 Am. Rep. 12; Devlin v. had power to provide for the administration Com. (1882) 101 Pa. 273, 47 Am. Rep. 710; of the property of an absentee, yet that au- Stevenson v. Superior Court (1882) 62 Cal. 60, thority could not be exerted without vio- 65 ; Thomas v. People (1883) 107 Ill. 517, 47 lating the due process clause of the 14th Am. Rep. 458 ; Perry v. St. Joseph & W. R. Co. Amendment if the administrative proceed (188329 Kan. 420, 423 ; Epping v. Robinson

(1884) 21 Fla. 36, 49; Martin V. Robinson ing, brought into play under the exercise of (188767 Tex. 368, 3 S. W. 550 ; Springer v. the authority, is made binding upon the ab- Shavender (1895) 116 N. C. 12, 33 L. R. A. sentee if it should subsequently develop that 772, 47 Am. St. Rep. 791, 21 S. E. 397, 118 N. he was alive when the administration was C. 33, 54 Am. St. Rep. 708, 23 S. E. 976; initiated. To sustain this proposition Carr. x. Brown (1897) 20 R. I. 217, 38 L. R.

A. 294, 78 Am. St. Rep. 855, 38 Atl. 9; Clapp numerous decisions of state courts of last

v. Houg (1904) 12 N. D. 600, 65 L R. A. 757 resort are relied upon, which are enumerated '98 N. W. 710.

alive. This conclusion was abundantly sus-, court of the ordinary or the surrogate,- does tained by a citation of the English and not exist or take effect before death. All proAmerican adjudications, in none of which ceedings of such courts in the probate of was the doctrine upon which the case pro- wills and the granting of administrations ceeded more cogently stated than in the depend upon the fact that a person is dead, opinion of this court, speaking through and are null and void if he is alive. Their Chief Justice Marshall, in Griffith v. jurisdiction in this respect being limited to Frazier, 8 Cranch, 9, 23, 3 L. ed. 471, 475. the estate of deceased persons, they have no That the opinion, however, in Scott v. MC-jurisdiction whatever to administer and Neal, was not intended to and did not im- dispose of the estates of living persons of ply that the states were wholly devoid of full age and sound mind, or to determine power to endow their courts with juris- that a living man is dead, and thereupon diction, under proper conditions, to ad- undertake to dispose of his estate.” minister upon the estates of absentees, even True it is that there are some general exthough they might be alive, by special and pressions found in the opinion (p. 50, L. ed. appropriate proceedings applicable to that p. 903, Sup. Ct. Rep. p. 1114), which, if condition, as distinct from the general power separated from the context of the opinion, to administer the estates of deceased per- might lead to the conclusion that it was held sons, is conclusively shown by the opinion that a state was absolutely without power in Scott V. McNeal. Thus, the law of to provide by a special proceeding for the Louisiana, providing for the administration administration and care of the property of of the property of absentees, as distinct an absentee, and to confer jurisdiction on from the authority conferred to administer its courts to do so, irrespective of the fact the estates of deceased persons, was ap- of death. But these general expressions are provingly referred to. And, moreover, as necessarily controlled by the case which showing that it was deemed that the absence was before the court, and by the context of of legislation by the state of Washington of the opinion, which makes it clear that it a similar character was the determinative was alone decided that under a law givfactor in the case, the court said (p. 47, L. ing jurisdiction to probate courts to admined. p. 902, Sup. Ct. Rep. p. 1113):

ister the estates of deceased persons, even "The local law on the subject, contained although a rebuttable presumption existed in the Code of 1881 of the territory of Wash- as to death after a certain time, that if ington, in force at the time of the proceed such presumption was subsequently rebutted ings now in question, and since continued in by the proof of the fact of life, that the force by article 27, § 2, of the Constitution court, whose authority depended upon death, of the state, does not appear to us to war- was devoid of jurisdiction. rant the conclusion that the probate court is

We have said that two of the cases relied authorized to conclusively decide, as against upon would be separately noticed. Those a living person, that he is dead, and his cases are Carr v. Brown, 20 R. I. 217, 38 L. estate therefore subject to be administered R. A. 294, 78 Am. St. Rep. 855, 38 Atl. 9, and disposed of by the probate court. and Clapp v. Houg, 12 N. D. 600, 65 L. R.

“On the contrary, that law, in its very A. 757, 98 N. W. 710. In the first case terms, appears to us to recognize and as- there was a statute of Rhode Island providsume the death of the owner to be a funda- ing for administration under the presumpmental condition and prerequisite to the tion of death after an absence of seven exercise by the probate court of jurisdiction years, and it was decided that the statute to grant letters testamentary or of adminis- was void. The opinion leads to the view tration upon his estate, or to license any that the conclusion of the court was prione to sell his lands for the payment of his marily based upon the construction that the debts.”

statute did not create a conclusive preAfter copiously reviewing the Washington sumption conferring jurisdiction in the event statutes and pointing out that they dealt the absentee was alive, and not dead. In the with the estates of deceased persons as such, state of North Dakota, but the court held

second case there was also a statute of the the case was summed up in the following it to be void, because of the inadequacy of language:

the notice for which it provided. There are, “Under such a statute, according to the in both of the cases, expressions tending to overwhelming weight of authority, as shown the view that the state was without power by the cases cited in the earlier part of this to provide by special legislation for the adopinion, the jurisdiction of the court to ministration of the property of an absentee. which is committed the control and manage- In so far, of course, as these views were ment of the estates of deceased persons, by rested upon the state Constitution, we are whatever name it is called, -ecclesiastical not concerned with them. In so far, howcourt, probate court, orphans' court, or ever, as they intimate that, by the operation of the 14th Amendment, the states are de- creation by a state law of an arbitrary and prived of power to legislate concerning the unreasonable presumption of death resultestates of absentees, we do not approve them. ing from absence for a brief period, would

The error underlying the argument of the be a want of due process of law, and thereplaintiff in error consists in treating as one fore repugnant to the 14th Amendment. two distinct things,—the want of power in Let it be further conceded, as we also think a state to administer the property of a per- is essential, that a state law which did not son who is alive, under its general authority provide adequate notice as prerequisite to to provide for the settlement of the estates the proceedings for the administration of of deceased persons, and the power of the the estate of an absentee would also be restate to provide for the administration of pugnant to the 14th Amendment. Again, let the estates of persons who are absent for it be conceded that if a state law, in providan unreasonable time, and to enact reasoning for the administration of the estate of able regulations on that subject. The dis- an absentee, contained no adequate safetinction between the two is well illustrated guards concerning property, and amounted, in Pennsylvania, for in that state, prior to therefore, simply to authorizing the transthe enactment of the statute in question, it fer of the property of the absentee to others had been expressly decided that a court of that such a law would be repugnant to the probate, as such, was absolutely wanting in 14th Amendment. We think none of these jurisdiction to administer the estate of a concessions are controlling in this case. So person who was alive, simply because there far as the period of absence provided by the existed a presumption which was rebuttable statute in question, it certainly cannot be as to the fact of death. This is also aptly said to be unreasonable. So far as the illustrated by the law of Louisiana. In notices which it directs to be issued, we that state, as we have seen, provisions have think they were reasonable. As concerns the existed from the beginning for the adminis- safeguards which the statute creates for the tration of the estates of absentees as distinct protection of the interest of the absentee in from the power conferred upon the courts of case he should return, we content ourselves probate to administer the estates of deceased with saying that we think, as construed by persons. In this condition of the law, under the Supreme Court of Pennsylvania, the an averment of death, an estate was opened provisions of the statute do not conflict with in a probate court of Louisiana, and ad- the 14th Amendment. ministered upon. A question as to the va- Affirmed. lidity of that administration subsequently

(199 U. S. 89) arose in Burns v. Van Loan, 29 La. Ann. HANNAH O'CALLAGHAN and Edward 560, 563. As the proceedings were probate

Corcoran, Appts., proceedings not taken under the statute providing for the administration of the estates of absentees, the supreme court of the state TERENCE O'BRIEN, as Administrator of

the Estate of John Sullivan, Deceased; of Louisiana declared them to be absolutely

Marie Carrau, W. M. Russell, and S. F. void. As it cannot be denied that, in sub

Coombs. stance, the Pennsylvania statute is a special proceeding for the administration of the Appeal from circuit court of appeals-juestates of absentees, distinct from the risdiction of circuit court-diverse citizengeneral law of that state providing for the ship-case involving constitutional quessettlement of the estates of deceased per- tion. sons, and as, by the express terms of the

1. Rights asserted under the Constitution of statute, jurisdiction was conferred upon the the United States may be so wholly wanting proper court to grant the administration, it in merit as not to afford a basis for an apfollows that the supreme court of Pennsyl

peal to the Supreme Court from a decree of a

circuit court of appeals. vania did not deprive the plaintiff in error

2. Diverse citizenship does not give jurisdicof due process of law within the intendment

tion to a Federal circuit court of a bill which of the 14th Amendment.

seeks a declaration of the nonexistence of a 2d. It remains only to consider the con- will, and the consequent nullity of its protention that even although there was power bate in a state court, where the proceeding to to enact the statute, it is nevertheless re

contest a will afforded by the laws of that

state is but supplementary, or ancillary, to pugnant to the 14th Amendment, because it

the original probate proceedings, and is not fails to provide notice as a prerequisite to an independent controversy inter partes. the administration which the

statute 3.

The contention that a state court, in adauthorizes, and because of the absence from mitting a nuncupative will to probate withthe statute of essential safeguards for the out giving the statutory notice to the next of

kin, violated the due process of law clause of protection of the property of the absentee

the 14th Amendment to the Constitution of which is to be administered. Let it be

the United States, is too lacking in merit to conceded, as we think it must be, that the afford a basis for the jurisdiction of a Fed.

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