In re the Judicial Settlement of the Accounts of Allen

New York Surrogate's Court

In re the Judicial Settlement of the Accounts of Allen

24 N.Y. St. Rep. 251

DecidedMay 10, 1889

StatusPublished

This text of 24 N.Y. St. Rep. 251 (In re the Judicial Settlement of the Accounts of Allen) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Judicial Settlement of the Accounts of Allen, 24 N.Y. St. Rep. 251 (N.Y. Super. Ct. 1889).

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Opinion

Abbott, S.

The only material point to be decided in this application is, what was the date of death of the intestate.

[252]*252While the law raises a presumption of death after an absence of seven years, unheard of, yet it raises no presumption as to time of death.

If it becomes important for a party to establish a pricise time of death, he must do so by evidence, and cannot rely either upon the presumption of death, or of the continuance of life. The time of death, whenever it is material, must be inferred from all the circumstances of the case. While the presumption does not attach- to a lapse of time less than seven years, yet after a lapse of seven years, should all the circumstances warrant it, the fact of death may be found from the lapse of a shorter period. The issuing of letters of administration upon the estate of a person is prima facie evidence of the person’s death, and it will be presumed that the court issuing the letters did so upon competent proof of that fact.

After examining the petition and all the testimony taken in the application for letters Of administration in this matter, I have no doubt the intestate died on or about the 16th day of November, 1876, and I so hold.

Such being the case, he left him surviving as his next of kin, entitled to share in his estate, his uncle John H. Allen, and his three aunts, ’ Cynthia McKee, Elizabeth Leek and Sarah Burtis.

The share of Sarah Burtis was vested at the time of her death, and is now payable to Leonard J. Burtis, her sole next of kin and administrator. '

Let decree be entered accordingly.

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Abbott, S.

The only material point to be decided in this application is, what was the date of death of the intestate.

[252]*252While the law raises a presumption of death after an absence of seven years, unheard of, yet it raises no presumption as to time of death.

If it becomes important for a party to establish a pricise time of death, he must do so by evidence, and cannot rely either upon the presumption of death, or of the continuance of life. The time of death, whenever it is material, must be inferred from all the circumstances of the case. While the presumption does not attach- to a lapse of time less than seven years, yet after a lapse of seven years, should all the circumstances warrant it, the fact of death may be found from the lapse of a shorter period. The issuing of letters of administration upon the estate of a person is prima facie evidence of the person’s death, and it will be presumed that the court issuing the letters did so upon competent proof of that fact.

After examining the petition and all the testimony taken in the application for letters Of administration in this matter, I have no doubt the intestate died on or about the 16th day of November, 1876, and I so hold.

Such being the case, he left him surviving as his next of kin, entitled to share in his estate, his uncle John H. Allen, and his three aunts, ’ Cynthia McKee, Elizabeth Leek and Sarah Burtis.

The share of Sarah Burtis was vested at the time of her death, and is now payable to Leonard J. Burtis, her sole next of kin and administrator. '

Let decree be entered accordingly.

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Bluebook (online)

24 N.Y. St. Rep. 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-accounts-of-allen-nysurct-1889.