In re the Estate of Rausch
75 Misc.2d 483, 1973 N.Y. Misc. LEXIS 1605, 347 N.Y.S.2d 925 (1973)
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Rule of Law:
A court may presume the death of an absent person less than five years after their disappearance if facts indicate that the person was exposed to a specific peril of death, overriding the general statutory five-year unexplained absence requirement.
Facts:
- Robert E. Rausch married the petitioner on January 29, 1960, in Hamburg, New York, and they had three children.
- Robert E. Rausch, a Captain in the United States Air Force, received orders in December 1969 assigning him to duty in South Vietnam.
- On April 16, 1970, Captain Rausch and his pilot departed Tan Son Nhut Airfield in Vietnam at 11:35 a.m. on a photographic reconnaissance mission over Laos.
- Contact with Captain Rausch's plane was not re-established after 2:00 p.m. on April 16, 1970.
- On April 17, 1970, search and rescue units sighted a metal-filled crater, which was tentatively identified as the crash site of Captain Rausch's aircraft after examining photographs.
- The identified crater was located just below the demilitarized zone in an area with a high concentration of enemy forces.
- The rescue operation for Captain Rausch, having failed to contact or locate him, was terminated as of April 23, 1970.
- Following the cessation of hostilities in South Vietnam and the return of all prisoners of war, the United States Air Force interrogated former POWs, none of whom indicated seeing, hearing, or having any contact with Captain Rausch.
Procedural Posture:
- Petitioner filed a proceeding in Surrogate's Court seeking the issuance of temporary letters of administration.
- Petitioner requested a determination that her husband, Robert E. Rausch, be presumed to have died as a result of his being exposed to a specific peril.
- A hearing was held on August 17, 1973, in Surrogate's Court where testimony and exhibits were submitted.
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Issue:
Does a husband's disappearance during a military reconnaissance mission over a hostile area, with evidence of a probable crash site and failed search efforts, constitute exposure to a "specific peril of death" sufficient to presume death less than five years after his absence commenced, pursuant to EPTL 2-1.7(a)(1)?
Opinions:
Majority - William J. Regan, S.
Yes, Robert E. Rausch may be presumed to have died as of April 16, 1970, because the extensive testimony and exhibits demonstrate he was exposed to a specific peril of death. The court found that EPTL 2-1.7(a)(1) allows for a determination of death in less than five years when a person is exposed to a specific peril. Evidence presented showed Captain Rausch embarked on a reconnaissance mission over Laos, lost contact, and a probable crash site was identified in a hostile, enemy-controlled area. Intensive search efforts failed, and no returned prisoners of war had any knowledge of him. The court clarified that while a federal restraining order prevented military departments from making official findings of death, it did not restrict state courts from making such determinations under state law. Furthermore, the court considered the welfare of Captain Rausch's children, concluding that determining his death would best serve their moral and temporal interests. This determination aligned with precedents from similar cases where death was found prior to the expiration of the statutory period due to specific perils.
Analysis:
This case is significant for clarifying the application of the "specific peril" exception to the general five-year presumption of death statute under EPTL 2-1.7(a)(1). It establishes that courts have the discretion to weigh compelling evidence of immediate danger and unexplained disappearance to make an earlier determination of death, particularly in situations involving combat or hazardous environments. The ruling also affirms the independence of state courts to make findings of death under state law, even when federal administrative processes are constrained by external orders, thereby preventing undue delays for families seeking to administer estates. This precedent offers a vital pathway for dependants to gain closure and manage legal affairs in cases where a loved one's death is highly probable but not officially confirmed through other channels.
