Stevenson v. Superior Court

Ross, J.: The question in this case is whether the Court in which was had administration upon the estate of a man supposed to have been dead, but who subsequently and after the administration had been closed appeared “in the flesh,” and moved the entry of an order vacating and annulling the proceedings, rightly granted the motion and entered, the order. We have no doubt of the correctness of the action of the Court in that particular.

Administration may lawfully he had upon the estate of a dead man, but not upon that of one in life. Until death occurs there is no “subject matter” over which it is possible for any Court to exercise jurisdiction. It is true that the Court of Probate, before issuing letters of administration, must first [62]determine affirmatively the question of death. But notwithstanding such determination the fact that the supposed intestate is alive may still be shown, and when shown, establishes the nullity of the entire proceedings. The authorities in support of this proposition are numerous. (Sec. 1, Williams on Executors, American notes by Perkins to page 632, and notes to page 631; Vol. vii. Robinson’s Prac., p. 324; Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; Fisk v. Norvel, 9 Texas, 12; Duncan v. Stewart, 25 Ala. 408; Allen v. Dundas, 3 T. R. 125.)

In Griffith v. Frazier, 8 Cranch. 23, Chief Justice Marshall said: “Suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others be dead or in life. It is a branch of every cause in which letters of administration issue. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the facts be otherwise, does not invest the person he may appoint with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by the law. And although one of the points occurs in all cases proper for his tribunal, yet that point can not bring the subject within his jurisdiction.”

In Beckett v. Selover, 7 Cal. 226, 227, this Court said that the fact of death and the place of residence of the deceased at the time of death must be alleged in the petition for letters, and must be true in point of fact, “and when they do not both exist in point of fact the proceedings are utterly void and not voidable.” Further on, the Court said: “It is apprehended that no one would insist that a grant of administration before the death of a person, however regular, could be sustained anywhere. The decision of the Probate Court, that the man was dead, would not be conclusive against him; and the fact of residence is of equal importance to give the particular Court jurisdiction, and the decision of one point is no more conclusive than the decision on the other.”