In re the Judicial Settlement of the account Wagener
143 A.D. 286, 128 N.Y.S. 164 (1911)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An absentee, who has not been heard of for seven years, may be presumed to be dead for the purpose of distributing an estate, unless circumstances satisfactorily account for the failure to communicate on some other hypothesis than death, or where no diligent inquiry has been made.
Facts:
- On September 20, 1892, Emilie Kaaz, the appellant’s sister, married Charles Jules Bozenhard.
- Emilie and Charles lived together until January 25, 1893, when Charles Jules Bozenhard disappeared and has not been heard from since.
- On June 6, 1893, a child was born to Emilie and Charles.
- Emilie and the child lived with and were supported by the appellant until June 15, 1904, when both died in the Slocum disaster.
- Emilie Bozenhard left a small estate of about $2,000, consisting of savings from her brother’s earnings entrusted to her.
- Charles Jules Bozenhard was a native of Germany who had lived in the U.S. for about six years before his marriage, intermittently staying with his aunt, his only known relative in the country, and despite a history of temporary unexplained absences, he had always returned to her home.
- Upon Charles's disappearance, it was reported to the police, and extensive searches were made, including inquiries in Germany, but no trace of him was ever found.
- Before his disappearance, Charles had taken a canvasser’s outfit from a seed firm and $100 belonging to his brother-in-law (the appellant), which the brother-in-law had given him to deposit in his own name.
Procedural Posture:
- A proceeding was initiated for the distribution of the estate of Emilie Bozenhard in Surrogate's Court.
- A referee appointed in the Surrogate's Court found that there was a presumption of death for Charles Jules Bozenhard, the absentee husband.
- The Surrogate's Court sustained exceptions to the referee's report, ruling that the circumstances of Charles's departure made it unlikely he would communicate with his friends, thereby rejecting the presumption of death.
- The appellant (Emilie's brother) appealed the Surrogate's Court's decision to the Appellate Division of the Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the common law presumption of death, arising after seven years of unexplained absence, apply for the purpose of distributing an estate, even if there are speculative reasons for the absentee's failure to communicate that do not conclusively negate the possibility of death?
Opinions:
Majority - Miller, J.
Yes, the common law presumption of death applies in this case, and the evidence justified the referee's finding that Charles Jules Bozenhard should be presumed dead for the purpose of distributing Emilie's estate. The general rule allows for a presumption of death after seven years of unexplained absence for estate distribution, provided it is applied cautiously and with limitations. While circumstances may account for an absentee's silence without assuming death, or if no inquiry was made, such was not the case here. Charles, though prone to temporary absences, always returned to his aunt, his only known American relative who treated him like a son. Extensive police searches and inquiries in Germany yielded no trace over eighteen years. The court found speculative motives for his disappearance (displeasure at fatherhood, minor theft) insufficient to satisfactorily account for his complete failure to communicate with both his wife and aunt. Moreover, his motives for concealment, if any, would likely have disappeared over time, particularly after his wife and child perished in the widely publicized Slocum disaster in 1904, an event that, if he were alive, he would almost certainly have learned about. Therefore, balancing the probabilities, the court concluded that the circumstances did not provide a satisfactory explanation for his continued silence other than death.
Dissenting - McLaughlin, J.
McLaughlin, J., dissented from the majority opinion. The specific reasoning for the dissent is not provided in the excerpt.
Concurring - Clarke, J.
Clarke, J., concurred with the majority opinion, but did not author a separate statement within this excerpt.
Concurring - Scott, J.
Scott, J., concurred with the majority opinion, but did not author a separate statement within this excerpt.
Concurring - Dowling, J.
Dowling, J., concurred with the majority opinion, but did not author a separate statement within this excerpt.
Analysis:
This case clarifies the application of the common law presumption of death after seven years of unexplained absence, emphasizing that mere speculation about alternative reasons for silence is insufficient to overcome the presumption if diligent inquiry has been made. It underscores the court's pragmatic approach to resolving property rights for the living when an individual's status remains unknown indefinitely, highlighting the policy against holding rights in abeyance indefinitely. The decision places a burden on those opposing the presumption to provide a satisfactory factual explanation for the continued silence, especially when multiple close relatives and significant public events are involved, thereby making it harder to challenge the presumption with weak or unsubstantiated theories.
