-does not exist or take effect before death. All proceedings of such courts in the probate of wills and the granting of administrations depend upon the fact that a person is dead, and are null and void if he is alive. Their jurisdiction in this respect being limited to the estates of deceased persons, they have no jurisdiction whatever to administer and dispose of the estates of living persons of full age and sound mind, or to determine that a living man is dead, and thereupon undertake to dispose of his estate.

A court of probate must, indeed, inquire into the person whose will is sought to be proved or whose estate is sought to be administered, because without that fact, the court has no jurisdiction over his estate; and not because its decision upon the question, whether he is living or dead, can in any wise bind or estop him, or deprive him, while alive, of the title or control of his property.

As the jurisdiction to issue letters of administration upon his estate rests upon the fact of his death, so the notice given before issuing such letters assumes that fact, and is addressed, not to him, but to those who after his death may be interested in his estate, as next of kin, legatees, creditors, or otherwise. Notice to them cannot be notice to him, because all their interests are adverse to his. The whole thing, so far as he is concerned, is res inter alios acta. Next of kin or legatees have no rights in the estate of a living person. His creditors, indeed, may, upon proper proceedings, and due notice to him, in a court of law or of equity, have specific portions of his property applied in satisfaction of their debts. But neither creditors nor purchasers can acquire any rights in his property through the action of a court of probate, or of an administrator appointed by that court, dealing, without any notice to him, with his whole estate as if he were dead.

The appointment by the probate court of an administrator of the estate of a living person, without notice to him, being without jurisdiction, and wholly void as against him, all acts of the administrator, whether approved by that court or not, are equally void. The receipt of money by the administrator is no discharge of a debt, and a conveyance of property by the administrator passes no title.

The fact that a person has been absent and not heard from for

seven years may create such a presumption of his death as, if not overcome by other proof, is such prima facie evidence of his death that the probate court may assume him to be dead, and appoint an administrator of his estate, and that such administrator may sue upon a debt due to him. But proof, under proper pleadings, even in a collateral suit, that he was alive at the time of the appointment of the administrator, controls and overthrows the prima facie evidence of his death, and establishes that the court had no jurisdiction and the administrator no authority; and he is not bound, either by the order appointing the administrator or by a judgment in any suit brought by the administrator against a third person, because he was not a party to and had no notice of either.

In a case decided in the circuit court of the United States for the southern district of New York in 1880, substantially like Roderigas v. Institution, as reported in 63 N. Y. 460, above cited, Judge Choate, in a learned and able opinion, held that letters of administration upon the estate of a living man, issued by the surrogate after judicially determining that he was dead, were null and void as against him; that payment of a debt to an administrator so appointed was no defense to an action by him against the debtor; and that to hold such administration to be valid against him would deprive him of his property without due process of law, within the meaning of the fourteenth amendment of the constitution of the United States. This court concurs in the proposition there announced "that it is not competent for a state, by a law declaring a judicial determination that a man is dead, made in his absence, and without any notice to or process issued against him, conclusive for the purpose of divesting him of his property and vesting it in an administrator, for the benefit of his creditors and next of kin, either absolutely or in favor of those only who innocently deal with such administrator. The immediate and necessary effect of such a law is to deprive him of his property without any process of law whatever, as against him, although it is done by process of law against other people, his next of kin, to whom notice is given. Such a statutory declaration of estoppel by a judgment to which he is neither party nor privy, which has the immediate effect of divesting him

of his property, is a direct violation of this constitutional guaranty." Lavin v. Bank, 18 Blatchf. 1, 24, 1 Fed. 641.

The defendants did not rely upon any statute of limitations, nor upon any statute allowing them for improvements made in good faith; but their sole reliance was upon a deed from an administrator, acting under the orders of a court which had no jurisdiction to appoint him or to confer any authority upon him, as against the plaintiff.

Judgment reversed, and case remanded to the supreme court of the state of Washington for further proceedings not inconsistent with this opinion.

SCHLUTER v. BOWERY SAV. BANK.

117 N. Y. 125. 1889.

Appeal from supreme court, general term, first department. This action was brought by Eliza Schluter, as administratrix of Antoinette Knittel, against the Bowery Savings Bank. The grounds of the action are as follows: In October, 1872, Margaret Knittel, then a married woman, deposited in the Bowery Savings Bank the money claimed in this action, in trust for Antoinette Knittel, which was entered upon the books of the bank, and the pass-book belonging to Mrs. Knittel, as follows: "Bowery Savings Bank, in account with Margaret Knittel, in trust for Antoinette Knittel." Antoinette was then an infant about six years old, and lived with her parents in this state. Subsequently, they moved to the state of New Jersey, where they lived until June, 1875, when Mrs. Knittel died. Her husband took out letters of administration on her estate in the state of New Jersey; and on October 22, 1875, the defendant paid to him, as such administrator, the deposit, with the interest thereon, then amounting to $629.40. Mrs. Knittel, in fact, left a last will and testament, which was subsequently, on the 17th day of November, 1875, admitted to probate by the surrogate of the county of New York, and letters testamentary were issued to Louis Sier, the executor named in the will. Soon thereafter, he demanded payment of the deposit to him, which was refused. On the 18th day

of December, 1885, Antoinette, who continued to reside in the state of New Jersey, died, and the plaintiff was, on the 14th day of May thereafter, appointed by the surrogate of New York administratrix of her estate. She then demanded payment of the deposit, and the interest thereon, which was refused, and then this action was commenced. The action was brought to trial at a circuit, and at the close of the evidence the court directed a verdict in favor of the defendant on the ground that the payment to the administrator of Mrs. Knittel discharged the defendant. From the judgment entered upon the verdict the plaintiff appealed to the general term, and then to this court.

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EARL, J. The defendant was incorporated by the act, chapter 229 of the Laws of 1834; and by section 6 of that act it was provided that deposits therein should be repaid to each depositor when required, and at such time, and with such interest, and under such regulations, as the board of managers from time to time prescribed. One of the by-laws of the defendant, printed in the pass-book which was delivered to the depositor, provided that on the decease of any depositor the amount standing to the credit of the deceased should be paid to his or her legal representatives. We have several times held that by such a deposit the depositor constituted himself or herself a trustee, and that the title to the fund was thereby transferred from the depositor individually to the depositor as trustee; and in Boone v. Bank, 84 N. Y. 83, a case entirely similar to this, we held that payment of the deposit to the administrator of the depositor, in the absence of any notice from the beneficiary, was good an effectual to discharge the savings bank; and it is unnecessary. now to repeat the reasoning of the opinion in that case. Here there was no notice to the bank from the beneficiary, and the payment to the administrator of Mrs. Knittel was made in entire good faith.

But the claim is made that because Mr. Knittel was a foreign administrator, deriving his authority from administration granted in the state of New Jersey, he was not the personal representative of the deceased, and that therefore payment could not legally be made to him. Payment to the personal representative is good, because at the death of the intestate he becomes entitled to all his personal property wherever situated, and, having the legal

title thereto, he can demand payment of choses in action; and a payment to him made anywhere, in the absence of any conflicting claim existing at the time, is valid. It is true that, if the defendant had declined payment, the foreign administrator could not have brought action in this state to enforce it. But a voluntary payment to such an administrator has always been held valid. Therefore, in receiving this payment, Mr. Knittel was the representative of the deceased, and able to give an effectual discharge to the defendant. Parsons v. Lyman, 20 N. Y. 103; Petersen v. Bank, 32 N. Y. 21; In re Butler, 38 N. Y. 397; Wilkins v. Ellett, 9 Wall. 740.

Mrs. Knittel, however, actually left a will, which was subsequently admitted to probate. But the letters of administration were not therefore void, the court having jurisdiction to grant them; and, until they were revoked, all persons acting in good faith were protected in dealing with the administrator thus appointed. And so it has always been held. Rodgerigas v. Institution, 63 N. Y. 460, 76 N. Y. 316; Kittredge v. Folsom, 8 N. H. 98; Patton's Appeal, 31 Pa. St. 465. Here the payment was made before the will was admitted to probate, and at the time of such payment Mr. Knittel was the legal representative of the deceased, and authorized to administer upon her estate. Our attention has been called to no case, and we are confident none can be found, holding that the subsequent discovery of a will, and its admission to probate, renders the prior appointment of an administrator absolutely void so as to give no protection to persons who, in dealing with the administrator, have acted on the faith thereof. Woerner, Adm 'n, 568, 571, 588.

Under the act, chapter 782 of the Laws of 1867, Mrs. Knittel, although a married woman, was capable of being a trustee. She constituted herself a trustee here, and here the trust fund remained; and therefore, although by the law of New Jersey a married woman could not be appointed a trustee, yet the trust could be enforced here. Her removal to that state did not divest her of the title to the fund she thus had; and that title remained in her, as no one was appointed to take it from her.

The statutes of New Jersey were proved, showing that the surrogate of the county of which Mrs. Knittel was an inhabitant and resident at the time of her death had jurisdiction to grant letters