CHAPTER 140

SETTLEMENT OF PERSONAL ESTATES

AN ACT TO AMEND CHAPTER 98 OF THE REVISED CODE OF DELAWARE, 1935, RELATIVE TO SETTLEMENT OF PERSONAL ESTATES BY PROVIDING FOR HEARING CONCERNING ABSENCE AND CIRCUMSTANCES THEREOF OF PERSONS PRESUMED TO BE DEAD; GRANTING OF LETTERS ON ESTATE OF SUCH PERSON TO PARTY INTERESTED; DISTRIBUTION OF ESTATE; REVOCATION OF LETTERS OF ADMINISTRATION AND VACATION OF DECREE UPON PROOF THAT PRESUMED DECEDENT IS ALIVE; COSTS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That 3826, Section 28, of the Revised Code of Delaware, 1935, be and the same is hereby amended by striking out all of 3826, Section 28, and inserting in lieu thereof the following section, to be known as 3826, Section 28:

3826. Section 28. (a) Whenever, hereafter any person shall be presumed to be dead, on account of absence for seven or more years from the place of his or her last domicile, whether the same be within this State or in any other State, Territory, or possession of the United States or in any foreign country, any person entitled under the last will and testament of such presumed decedent or under the intestate laws to any share in his or her estate within this State, or under any deed, will or other instrument in writing or in any other way, method or manner to any share or interest in any estate held by or for such presumed decedent for years, or for the term of his or her natural life, or the escheator for the State, may present a Petition to the Register of Wills of the county of such person's last residence, or, where the presumed decedent was a non-resident of this State, to the Register of Wills of the County where the greater part of his property within this State may be situated, setting forth the facts which raise the presumption of death and praying for an adjudication thereon declaring such person to be presumed to be deceased. The said Register of Wills if satisfied as to the interest of the petitioner, may cause to be advertised in a newspaper published in said county once a week for four consecutive weeks, together with such other advertisement as the court, according to the circumstances of the case, shall deem expedient or advisable, the fact of such application, together with notice that on a day certain, which shall be at least two weeks after the last appearance of said advertisement, the Register of Wills will hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof.

(b) Whenever, hereafter, letters of administration or letters testamentary shall have been granted in any other State, Territory, or possession of the United States, or in any foreign country, on the estate of a resident thereof, presumed .to be dead, on account of absence for seven or more years from the place of his last domicile, it shall be lawful for the person or persons, or trust company, to whom such letters have been granted, to present a petition to the Register of Wills of the county within this State in which all or the greater portion of the estate of said presumed decedent may be found, accompanied by a complete exemplification of the record of the grant of such letters, praying for the grant of ancillary letters testamentary or of administration upon the estate of such presumed decedent, situate, owing, or belonging to him within this State. The said Register of Wills, if satisfied that the person or trust company proposed in such petition would be a fit person or company to whom such letters might be issued, shall cause publication to be made, in the manner and for the period as provided in clause (a) of this Section, of the fact of such application, together with notice that on a day certain, which shall be at least two weeks after the last appearance of said advertisement, the Register of Wills will hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof.

(e) At the hearing in either of the cases provided for in the preceding clauses of this Section, the Register of Wills shall take such legal evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established; or may appoint a master to take such testimony, and report his finds thereof, within said period, evidence satisfactory to the Register of Wills of the continuance in life of the presumed decedent shall be presented, said decree shall be vacated; but, if such evidence shall not be forthcoming, such decree shall be confirmed absolutely; and it shall be the duty of the Register of Wills to issue letters of administration to the person thereto entitled; or to receive for probate the last will and testament of such presumed decedent, and, if duly proved, to admit the same to probate and issue letters testamentary thereunder; and the said letters, until revoked, and all acts done in pursuance thereof and in reliance thereupon, shall be as valid as if the presumed decedent were really dead.

(f) Whenever the said Register of Wills shall enter a decree that the presumption of death of any person has been established, and such decree shall be confirmed absolutely, the real estate of the presumed decedent shall pass and devolve as in the case of actual death, and the person entitled by will or under the intestate laws may enter and take possession. In case the presumption of death is thereafter rebutted by adequate proof that the presumed decedent is in fact alive, the said decree is vacated, said real estate shall revert to him as fully as though such decree had never been entered, subject, however, to payment of the costs and expenses of the proceedings and advertisement aforesaid. Such decree, when confirmed absolutely, may be recorded in the office of the Recorder of Deeds of the proper county, in the deed book, and shall be indexed by the Recorder in the granters' index under the name of the decedent, and in the grantees' index under the names of the persons taking the real estate; and if so recorded, and the persons taking the real estate, sell or mortgage the same, the purchaser or mortgagee shall take a good title, free and discharged of any interest or claim of the presumed decedent.

(g) The executor or administrator to whom letters have been issued upon the estate of a presumed decedent,' as aforesaid, shall administer the estate in the same manner and with the same effect as the same would be administered under existing laws of this State, if the presumed decedent were in fact dead.

(Ii) Before any distribution of the proceeds of the estate of such presumed decedent, the persons, other than creditors, entitled to receive the same, shall, respectively, give sufficient real or personal security, to be approved by the Register of Wills having jurisdiction, in such sum and form as he shall direct, with condition that, if the said presumed decedent shall in fact be at the time alive, they will respectively refund the amounts received by each, on demand, with interest thereon. If any person or persons entitled to receive the same shall refuse or neglect, or be unable, to enter such security, the Register of Wills may, upon petition of any person interested, and upon due notice to all persons interested, so far as such notice can reasonably be given, appoint a suitable person or corporation as trustee to receive and hold the share of the distributee refusing or neglecting, or being unable, to enter security as aforesaid, until the further order of the Register of 'Wills; such trustee not to be an insurer of the trust fund, and to be liable to the person or persons interested therein only for such care, prudence and diligence in the execution of the trust as the trustees are liable for. If the said Register of Wills shall be satisfied, from the evidence at the hearing to ascertain whether the presumption of death is established, or from the report of the master, that there is no likelihood of the presumed decedent's being still alive, then the said Register of Wills may, at his discretion, accept refunding bonds from the distributees of the presumed decedent's estate without requiring sureties thereon.

(i) The Register of Wills may revoke the said letters and vacate the decree that the presumption of death has been established, at any time, on due and satisfactory proof that the presumed decedent is in fact alive. After such revocation all the powers of the executor or administrator shall cease, but all receipts or disbursements of assets, and other acts previously done by him, shall remain as valid as if the said letters were unrevoked. The executor or administrator shall settle on account of his administration down to the time of such revocation, and shall transfer all assets remaining in his hands to the person as whose executor or administrator he has acted, or to his duly authorized agent or attorney. Nothing in this section contained shall validate the title of any person to any money or property received as surviving spouse, next of kin, heir, legatee, or devisee of such presumed decedent, but the same may be recovered from such person in all cases in which such recovery would be had if this act had not been passed.

(j) After revocation of the letters, and vacation of the decree that the presumption of death has been established, the person erroneously presumed to be dead may, on the suggestion filed of record of the proper facts, be substituted as plaintiff or petitioner in all actions or proceedings at law, in equity or in any Orphans' Court or before the Register of Wills, brought by the executor or administrator, whether prosecuted to judgment or decree, or otherwise, he may, in all actions or proceedings previously brought against the executor or administrator, be substituted as decedent or respondent, on proper suggestion filed by himself, or by proper service of writ or other process, but shall not be compelled to go to trial in less than three months from the time of such suggestion filed or process served. Judgments or decrees recovered against the executor or administrator before revocation and vacation as aforesaid of the letters and decree, may be opened on application by the presumed decedent, made within three months from the said revocation, and supported by affidavit denying specifically, on the knowledge of the affiant, the cause of action, or specifically alleging the existence of facts which would be a valid defense; but, if within the said three months, such application shall not be made, or being made the facts exhibited shall be adjudged an insufficient defense, the judgment or decree shall be conclusive to all intents, saving the defendant's right to have it reviewed as in other cases on appeal. Notwithstanding the substitution of the presumed decedent as defendant in any judgment or decree, as aforesaid, it shall continue as a lien upon his real estate in the county, as other judgments.

(k) Whenever, hereafter letters testamentary or of administration shall be issued upon the estate of any person presumed to be dead, on account of absence of seven years or more from the place of his last domicile, in accordance with the foregoing provisions of this section, the person having custody of any will which may have been left by such presumed decedent, in case letters of administration have been issued, or of any later will, in case letters testamentary, have been issued, or any creditor of any person interested in the estate, may file a petition with the Register of Wills in which the proceedings to establish the death by presumption have been held, as aforesaid, setting forth the facts of the case, a copy of said will or later will, or an averment that such will exists, and the names of all persons interested in the estate of the presumed decedent. Upon the filing of such petition, said Register of Wills after due notice to all parties in interest, may receive proof in support of the averments of said petition, and, if established, to admit said will or later will to probate; and, if an executor be named in said will, to revoke said letters of administration, or, in case an earlier will shall have been admitted to probate, to set aside such probate and revoke the letters testamentary issued thereunder.

(1) Thereupon the Register of Wills shall issue a citation to the person to whom letters of administration or letters testamentary have been issued, as aforesaid, and to all persons interested in the estate of the presumed decedent, to appear upon a day fixed, and to show cause why the said alleged will or later will should not be admitted to probate.

(m) Upon the return of the citation, if the Register of Wills shall be satisfied from all the evidence that may be adduced that the proposed will was, in fact, the last will and testament made by the presumed decedent before his departure or disappearance from his residence, the said will shall be admitted to probate as if the testator were in fact dead. If, upon such probate, it appears that an executor is named in the will, the letters of administration previously granted shall be revoked, and letters testamentary shall be issued to said executor,. in the same manner and form as if the testator were in fact dead; but, if no executor shall be named in such will, then a certified copy of said will shall be attached to the letters of administration theretofore issued, or to a certified copy of such letters. Thereafter the executor or administrator shall execute the said will according to its terms, and all property of the decedent shall be distributed and passed as provided by said will to the several legatees and devisees named therein. In case an earlier will shall have been admitted to probate, the letters testaentary issued thereunder shall be revoked, and letters shall be issued under the said last will, or if no executor shall be named in said last will, then letters of administration with the will annexed shall be issued to the person or persons-entitled thereto.

() The costs attending the issuance or revocation of letters shall be paid out of the estate of the presumed decedent, and costs arising upon an application for letters which shall not be granted shall be paid by the applicant.

Approved May 1, 1939.