MEMORANDUM AND ORDER

This is a petition to declare that Frank D. Thomas [hereafter, Frank], one of decedent's sons, died on or about April 1, 1983. The citation in this matter was published and a guardian ad litem was appointed to represent Frank in this proceeding. On the return date of the citation, the guardian ad litem recommended that the relief sought by the estate be granted.

The estate has now submitted a proposed decree and order. In reviewing that document, particularly with respect to the factual findings which this Court is being asked to make, the record before me is such that, after careful consideration of all the alleged facts and circumstances proffered in support of a declaration of death, I have concluded that the relief requested cannot be granted.

The estate's application has been brought pursuant to EPTL 2-1.7(a), dealing with the "Presumption of death from absence; effect of exposure to specific peril". EPTL 2-1.7(a) provides as follows: [*2]

"A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death" (emphasis added).

Margaret Turano, in her commentary to the statute, notes that EPTL 2-1.7 is the successor to Decedents' Estate Law §80-a, which itself codified a holding of our Court of Appeals in Butler v. Mutual Life Ins. Co., 225 NY 197 [1919] (see Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, Estates, Powers and Trusts Law §2-1.7 [2012 ed] at 145). However, the time period within which the presumption may be invoked has been reduced from seven years under Butler to three years under our current statute.^[FN1]

In Butler, the Court of Appeals detailed the principles and considerations involved in a proceeding of this nature:

"The law contains the general presumption that a person who has been continuously absent from his home or place of residence, and unheard from or of by those who, if he had been alive, would naturally have heard of him, through the period of seven years, is dead. The presumption does not arise, however, when there exist circumstances or facts which reasonably account for his not being heard of, or his absence and abstention from communication are reasonably explained without assuming his death, or where diligent inquiry as to whether he is alive or dead has not been made. The presumption is the offspring, created by the courts, of the statutes enacted centuries ago providing that a tenant of real estate for life, or a husband or wife, who had been under a continuous and unexplained disappearance for a designated number of years, should be presumed to be dead. (Matter of Board of Education of New York, 173 NY 321. See, also, Code of Civil Procedure, section 841; Penal Law, section 341.) The burden of establishing the facts which may, within reason, give rise to the presumption is upon the person invoking it. He must prove more than the mere fact of absence during the period. He must produce evidence to justify the inference that the death of the absentee is the probable reason why nothing is known about him. Before a court is justified in presuming the death of a person, at a designated time, because of his absence, the proof [*3]should remove the reasonable probability of his being alive at the time. The presumption does not arise where it is improbable there would have been any communication with those who naturally would receive it." (Butler v. Mutual Life Ins. Co., supra, at 203, emphasis added).

Matter of Wagener, 143 App Div 286, 287-288 [1911], a case cited in Butler, noted both the purpose for the presumption and caveats to be observed in applying it:

"The general rule that an absentee, who has not been heard of for seven years, may be presumed to be dead at the expiration of the seven years, for the purpose of distributing an estate, is well settled. (See Jackson v. Claw, 18 Johns. 346; Eagle v. Emmet, 4 Bradf. 117; Matter of Tobin, 51 Hun 378; Barson v. Mulligan, 191 NY 306, 324.) Of course, the rule is to be applied with caution (Matter of Board of Education of New York, 173 NY 321, 326), and it has limitations. The rule and its limitations are stated, with supporting authorities, in Lawson's Presumptive Evidence (pp. 251 et seq.). Circumstances may justify a finding of death before, or they may be such as to give rise to no presumption either at or after the expiration of seven years. Each case must necessarily depend upon its own facts. When the failure of the absentee to communicate with his friends is satisfactorily accounted for on some other hypothesis than that of death, or when no inquiry has been directed to the place where he was last known to be, as in Dunn v. Travis (56 AD 317), no presumption arises. But it is to be borne in mind that the rule . . . is necessarily an artificial rule, depending for its application upon the known facts, regardless of what the actual fact may be. Rights are not to be held in abeyance indefinitely on account of the absence of a person of whom no trace can be found. He may not be dead, but he will be presumed to be dead for the purpose of fixing the rights of those known to be living" (emphasis added).

Decedent died on January 30, 2010, her husband, Barry Seals, having predeceased her. She had two children, Frank and his brother George (who died in Rhode Island in 2005). Her January 1, 1993 Will has been admitted to probate by this Court, and it nominated her niece, Bertha Hanns [hereafter, Hanns], executor of her estate. Letters testamentary were issued to Hanns on June 9, 2010.

Hanns' affidavit ^[FN2] seeking a declaration of Frank's death asserts the following:

"It is believed that Frank died in March 1980. He had recently moved [*4]to Houston, Texas. Attached as Exhibit D is a letter from Frank to his mother Ida, dated March 22, 1980.

Upon information and belief, based upon conversations with my Aunt Ida and other family members, Exhibit D is the last communication that Ida or any friend or family member received from Frank. Neither Aunt Ida nor any friend or family member ever saw or heard from Frank after March 22, 1980.

Based on conversations with Aunt Ida, I know that in 1980 and 1981 she made a trip to Houston, Texas, specifically to locate Frank or information about him. She did not locate him and she was unable to obtain any information about him.

Over the years Petitioner has spoken with Ida's brothers and sisters and my mother and other family members and friends. No one has seen or heard from Frank and received any information about him since March 22, 1980.

Upon information and belief Frank was never married and never had any children, natural or adopted.

That Petitioner and all of Frank's family and friends believe he is dead, that he died in March or early April 1980."

The foregoing constitutes the "proof" submitted by Hanns. All of it is hearsay, and nothing significant appears to post-date 1980 or 1981. And, from what is before me, it appears that assertions "on information and belief", such as that Frank was never married and had no children, are sheer guesswork. None of this constitutes the "diligent inquiry" required.

Moreover, there are facts and circumstances which militate against the conclusion Hanns requests this Court to make.

First, the March 22, 1980 letter from Frank to his mother offered by Hanns contains the following:

"You can give [my] address to Ms. [A]rlene or Karen (her little girl) if you want to but tell them to keep it to themselves, O.K.?" (emphasis added)

Second, decedent's 1993 Will provides, insofar as relevant here, as follows:

"EIGHTH: I give, devise and bequeath all of the rest, residue and remainder of my estate . . . to my sons, GEORGE R. THOMAS and [*5]FRANK D. THOMAS, equally, the survivor to take all. With regard to the real property and improvements at 80 Berwyn Street . . . it is my intention that my said sons or the survivor thereof have these subject to my husband's life estate, meaning that he shall have said items during his lifetime and they shall pass, upon his death, to such of my sons as survive me" (emphasis added).

Finally, decedent's obituary states the following:

"Ida is preceded in death by her husband, Barney Seals.

She is the mother of Frank D. Thomas and the late[ ] George R. Thomas."

Here, there is nothing to show what Frank's relationships with family and friends were when he moved to Texas in 1980. Likewise, there is not a scintilla of evidence to show that any efforts, diligent or otherwise, have been made to locate Frank by the estate or by anyone else.

Decedent's visit to Texas in 1980 or 1981 is not really germane or dispositive because Frank's 1980 letter asks her to keep his whereabouts secret. In this context, Hanns' hearsay about what transpired when decedent went to Texas in 1980 or 1981 is, under all the circumstances, ambiguous at best.

Thus, as in Kutner v. New England Mut. Life Ins. Co. of Boston, 57 AD2d 697 [1977] and Matter of Sanchez, 21 Misc 3d 1128A, 2009 NY Slip Op 50324U [2009], I cannot conclude that "the diligent search requirement set forth in EPTL 2-1.7" has been made.^[FN3] That being so, this proceeding must be, and it hereby is, dismissed, without prejudice to the issue of Frank's status being raised during the judicial settlement proceeding.

This decision shall constitute the Order of this Court in this matter and no other or further order shall be required.

DATED:BUFFALO, NEW YORK

March 10, 2014 [*6]

__________________________________

HON. BARBARA HOWE

Surrogate Judge