Page:Federal Reporter, 1st Series, Volume 1.djvu/653

 IiAVIN V. EMIGEANT INDUSTKIAL SAVINGS BANK. 6e5 �tion of deatli, the defence of payment to the persou holding Buch letters was overruled. The evidence of death produced in that case was the averment of the death, in the petition for the letters, upon the best of the petitioner's knowledge, information and belief; and it was found as a fact by the trial court that the surrogate never saw the petitioner, nor acted upon her petition, nor issued the letters, but that they were issued by his clerk, who used for that purpose a form signed by the surrogate in blank, which the clerk filled ont and to which he affixed the seal. �In the present case the evidence oflfered in proof of death was the petition for letters and the affidavit of the peti- tioner and the Ehode Island letters. The affidavit of the petitioner is clearly subject to the objection held good by the court of appeals in their decision last above referred to. It neither states as a fact, within the knowledge of the affiant, that John Lavin was de ad, nor does it state any facts from which an inference could be drawn that he was dead. It merely states, as did the petition in the case cited, that he was dead to the best of the deponent's information and belief. The Ehode Island papers contained no averment of death, but only of his absence from the state of Ehode Island, and in no way can the granting of such letters in Ehode Island be held by any implication to involve the finding of the fact of death, because the statute authorizes and expressly pro- vides for the issuing of letters on the estate of living persons absent from the state, and these letters, on inspection, appear to have been issued only on evidence of such absence. �The petition in the present case, however, appears to be unlike the petition in the second case of Eoderigas. The petition avers positively, and without qualification, the death of Lavin; and the verification by the petitioner is "that the matters of fact therein stated are true, and that the matters therein stated, of my information and belief, I believe to be true." There are certain matters averred as upon information and belief in the petition, but this particular fact of the death of Lavin is not so averred. It is stated as a fact, and theref o,re that averment is positively sworn to as true in the verification. ��� �