Page:Federal Reporter, 1st Series, Volume 1.djvu/652

 644 FEDERAI REPORTER. , �Institution, 63 N. T. 460, the court of appeals held that under the statutes of this state the surrogate has jurisdiction and is authorized to issue letters of administration in two cases: First, when the person whose estate is to be administered is dead; and, second, when the surrogate judicially determines that the party is dead, although, in fact, he is alive. Conse- quently a payment by a debtor of the supposed decedent, made in good faith, to a person to whom letters of adminis- tration had been granted by the surrogate, was held to bar the claim of the administratrix, duly appointed after the death of the party. �This decision, which was by a divided court, three of the seven judges dissenting, is based on the peculiar language of the statutes of New York, which indicated, as held by the majority of the court, an intention that, in favor of innocent third persons dealing in good faith with the person holding such letters, the decision of the surrogate upon the fact of death should be deemed conclusive as against the supposed decedent; and although the operation of the rule is admitted to work a hardship on the supposed decedent, by distributing bis property while he is alive among his creditors and next of kin, yet the legislation is defended as proper, and within the principle that the legislature may proteot innocent per- sons from loss or iujury when acting in reliance upon acts of public officers, and decrees of courts proceeding with appar- ent authority and jurisdiction; and, as bearing on the pro- priety of such protective laws, the suggestion is also made that, by the voluntary and unexplained absence of the party supposed to be dead, he has by his own acts induced the decision made by the surrogate that he was dead. �In a subsequent decision in the same case (unreported) the same court held, however, that to sustain the letters of administration, where the party was alive, there must be pro- duced to the surrogate some competent evidence of the par- ty's death, and the surrogate must himself pass on the ques- tion judicially ; and, therefore, as it appeared in that case that there was no competent proof of death produced, and that the surrogate had not himself passed judicially on the ques- ��� �