LAVIN LAVIN V.
V.
EMHMANT INDUSTRIAL SAVINGS BANK.
641
THE EMIGRA"ST INDUSTRIAL SA.VINGS BANK.
lOW-cui' Oourt, S. CREDITOR
n. New
York.
April 1, 1880.)
PAYMENT TO ADMINISTRATOR-LETTERS ISSUED DURING ABSENCE OF FROM STATE-" DUE PROCESS OF LAW" -ESTOPPEL. Payment to a foreign administrator upon the presentation of ancillary letters duly issued by a surrogate upon the proof of the original let. ters issued under a statute of the foreign state, providing that" if any person shall be absent from this state for the term of three years, without due proof of his being alive, administration may be granted upon such person's estate as if he 'were dead." will not avail as a defen:. SO the subsequent demand of the creditor.
E. D. McOarthy, for plaintiff. J. E. Devlin, for defendant. CHOATE, J. In this case a jury trial has been waived. The plaintiff, an a.ljen, sues to recover the sum of $400 by him with the defendant, an' incorporated savings bank doing business in New York city, with the accumulated interest. The answer admits the deposit by one John Lavin of $300 on the eighteenth day of July, 1865, and of $100 on the thirteenth day of January, 1866. It sets up as -a. defence that on the fourteenth day of February, 1877, one John M. Brennan made application to the surrogate of the city and county of New York for letters of administration upon the estate of the said John Lavin, and that th"reupon the said surrogate decided upon such application thtlt the said John Lavin was deceased and had died intestatf', leaving assets within said city a,· j county, and therenpon appointed John M. Brennan administrator, and issued to the said John M. Brennan letters of adminiiltfati<Jn of the goods, etc., whereof the said Lavin died possessed in the state of New York; that thereafter, and while said decision of the surrogate was in full force and unreversed, said Brennan presented his said letters to the defendant and demanded, as administrat('l' of John Lavin, the said amount deposited, with accrued and the defendant thereupon paid the same to him. , The answer denies that it was the plaintiff who made thesi deposits, but his identity was fully established by the en 1'.1,no.9-41
642
FEDERAL REPORTER.
dence, and the only question to be determined is that raised by the fact of payment of the deposit to Brennan. Upon .the trial the following facts appeared: The plaintiff was born in Ireland, and came to this country about the year 1859, and soon thereafter he became domiciled at the town of Cranston, Rhode Island, where he remained till after he made these deposits, except that he was temporarily absent for about two years, while in the service of the government, at Hilton Head. After making these deposits he returned to Cranston and remained there about a year, when he went to California. He left in charge of a friend in Cranston a trunk containing some personal effects, including his savings bank pass-book. When he went away he expressed the intention of returning in five years. In California he married, and lived with his wife and children for a number of years, and in April, 1879, he returned" to Rhode Island, where he was living when this action was commenced. After he left for California, and until his return to Rhode Island, in 1879, he had no communication whatever with any person in Rhode Island or elsewhere in the eastern states, or in New York, and no one in any of these states, so far as appears, was aware during all this time of his whereabouts, or whether he was alive or dead. .By the laws of Rhode Island it is enacted that "if any person shall be absent from this state for the term of three years, without due proof of his being alive, administration may be granted upon such per. son's estate as if he were dead." The same statute also provides that in case such person returns into the state the administrator shall account with and pay over to him any assets remaining in his hands, and also account for what he has disposed of under his trust. Under this statute application was made in 1877, after the plaintiff had been absent about 10 years, to the court of probate of the town of Cranston, county of Pl'Ovidence, and state of Rhode Island, for letters of administration upon the redl and personal estate of the plaintiff. Letters of administration were aC00rdingly issued, bearing date the twenty-fifth day of January, 1877, to John M. Bren-
