Page:Federal Reporter, 1st Series, Volume 1.djvu/680

 672 FEDERAL REPORTER. �him. People v. Bank of North America, 75 N. Y. 561. î:îo"W, the rule declared by the statute in question is that the inno- cent third person who pays ont his money in. reliance upon letters issued by the surrogate, regular in form, provided the surrogate determined judicially the fact of death, can, in ail cases, claim the benefit of an estoppel by sueh a record against the supposed decedent. And the law, in its apj)lication, is not limited to cases in which the decision of the surrogate is founded on evidence as to the conduct or the voluntary acts of the supposed decedent, as for instance, his leaving the state and remaining away without communication for such length of time as bas been held to raise a presumption of death for certain purposes. �The statute applies to ail cases whatsoever in which, upon any competent proof, the surrogate determines that the man is dead; as, for instance, where the evidence is that he shipped on board a certain vessel which was lost at sea, or that he was killed in a railroad disaster, or shot in the streets shortly before the petition for letters was filed. It is obvious that there are very many states of proof, wholly with- out regard to any voluntary action of the supposed decedent, which may have resulted in the decision of the surrogate. AU that a person relying ou the letters, therefore, can be held to know, or be informed of by the same being communi- cated to him, is that, upon some competent evidence, the surrogate bas found the fact of death. This clearly is not, in itself, any knowledge of any conduct on the part of the supposed decedent. �There is not, therefore, the essential element of an equita- ble estoppel, that the party relied on the conduct of the party — that is, upon his voluntary and unexplained absence — for that is not implied in the surrogate's finding, even if such absence would, in any case, work an estoppel. If this stat- ute were limited to the single case of a person who had left the state and not been heard from for a certain length of time, then there would be some force in the argument that a person relying on the letters was influenced by his knowl- edge of the fact, because in that case the letters could not ��� �