§ 1701 Presumption of death.
(a) When the death of a person or the date thereof is in issue, the unexplained absence from the last known place of residence and the fact that the person has been unheard of for 7 years may be a sufficient ground for finding that the person died 7 years after the person was last heard of.
(b) The fact that a person was exposed to a specific peril of death may be sufficient ground for finding that the person died less than 7 years after the person was last heard of.
(c) A written finding of missing in action or presumed death made by the Secretary of the Army, the Secretary of the Navy or other officer or employee of the United States authorized to make such finding pursuant to the Federal Missing Persons Act (37 U.S.C. § 551 et seq.), as now or hereafter amended, or a duly certified copy of such finding shall be received in any court, office or other place in this State as prima facie evidence of the death of the person therein found to be missing in action or dead, and the date, circumstances and place of disappearance.
§ 1702 Petition for adjudication of presumed death; notice of hearing.
(a) Whenever any person is presumed to be dead on account of absence for 7 years or more, exposure to specific peril or pursuant to a finding under Federal Missing Persons Act (37 U.S.C. § 551 et seq.), whether such person was domiciled within this State or in some 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 of the 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 natural life, or the Escheator for the State or any creditor of the presumed decedent, may present a petition to the Court of Chancery, setting forth the facts which raise the presumption and praying for an adjudication thereon declaring such person to be presumed to be deceased.
(b) The Court of Chancery, if satisfied as to the interest of the petitioner, shall cause to be advertised in a newspaper of general circulation in the county of the principal residence of the presumed decedent (or if nonresident then in such county as the Court shall direct), once a week for 3 consecutive weeks, together with such other advertisement as the Court, according to the circumstances of the case, deems expedient or advisable, the fact of such application, together with notice that on a day certain, which shall be at least 2 weeks after the last appearance of the advertisement, the Court shall hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof.
§ 1703 Petition for ancillary letters on estate of nondomiciliary presumed decedent; notice of hearing.
(a) Whenever letters of administration or letters testamentary have been granted in any other state, territory or possession of the United States, or in any foreign country, on the estate of a domiciliary thereof, presumed to be dead, the person to whom such letters have been granted may present a petition to the Court of Chancery, 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 the decedent within this State.
(b) The Court of Chancery, if satisfied that the person proposed in such petition would be a fit person to whom such letters might be issued, shall cause publication to be made, in the manner and for the period as provided in § 1702 of this title, of the fact of such application, together with notice that on a day certain, which shall be at least 2 weeks after the last appearance of the advertisement, the Court of Chancery shall hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof.
§ 1704 Hearing; competency of witnesses.
At the hearing in either of the cases provided for in §§ 1702 and 1703 of this title, the Court of Chancery shall take such legal evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established; or it may appoint a master to take such testimony, and report the findings thereon. No person shall be disqualified to testify by reason of relationship as husband or wife to the presumed decedent, or of interest in the estate of the presumed decedent.
§ 1705 Search for absentee.
The Court of Chancery, on its own motion or upon the application of any party in interest, may appoint a master, investigator or appropriate agency to search for the presumed decedent in any manner which the Court shall deem appropriate, and the expenses of such search shall be paid out of the property of the absentee.
§ 1706 Decree of presumed death; admission of will to probate and grant of letters.
(a) If satisfied, upon the hearing, or upon the report of a master, that the death of the presumed decedent has been established, the Court of Chancery shall so decree, and the Court shall determine in such decree the date of such death.
(b) The Register of Wills shall issue letters of administration to the person thereto entitled, or receive for probate the last will and testament of such presumed decedent, and, if duly proved, admit the same to probate and issue letters testamentary thereunder. The letters, until revoked, and all acts done in pursuance thereof and in reliance thereon shall be as valid as if the presumed decedent were actually dead.
§ 1707 Title to real estate of presumed decedent; recording of decree.
(a) Whenever the Court of Chancery enters a decree that the presumption of death of any person has been established, 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, and the decree is vacated, the real estate shall revert to the person erroneously presumed decedent as fully as though such decree had never been entered, subject, however, to subsection (b) of this section and to payment of the costs and expenses of the proceedings and advertisement.
(b) The decree 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 grantors' 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 or security interest, free and discharged of any interest or claim of the presumed decedent.
§ 1708 Duties of executor or administrator.
The executor or administrator to whom letters have been issued upon the estate of a presumed decedent 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.
§ 1709 Security given by beneficiaries.
(a) Before any distribution is made of the assets of the estate of the presumed decedent or before the decree is recorded in the office of the Recorder of Deeds as provided in § 1707(b) of this title, the persons, other than creditors, entitled to receive the same, shall, respectively give sufficient real or personal security, to be approved by the Court of Chancery, in such sum and form as the Court directs, with condition that, if the presumed decedent shall in fact be at the time alive, they will respectively refund the assets received by each, on demand.
(b) If any person entitled to receive assets refuses or neglects, or is unable to enter such security, the Court of Chancery 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 until further order of the Court. Such trustee shall not be an insurer of the trust fund, and shall be liable to the person interested therein only for such care, prudence and diligence in the execution of the trust as trustees are liable for.
(c) If the Court of Chancery 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 Court may accept refunding bonds from the distributees of the presumed decedent's estate without requiring sureties thereon.
§ 1710 Revocation of letters and vacation of decree of presumed death — Effect generally.
The Court of Chancery may revoke the 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 the executor or administrator, shall remain as valid as if the letters were unrevoked. The executor or administrator shall settle an account of administration down to the time of such revocation, and shall transfer all assets remaining to the person as whose executor or administrator the executor or administrator acted, or to a duly authorized agent or attorney. Nothing contained in this chapter 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 chapter had not been passed.
§ 1711 Revocation of letters and vacation of decree of presumed death — Effect upon pending actions and upon judgments rendered.
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 or in equity brought by the executor or administrator, whether prosecuted to judgment or decree, or otherwise; the person erroneously presumed to be dead may, in all actions or proceedings previously brought against the executor or administrator, be substituted as defendant or respondent, on proper suggestion filed by the person erroneously presumed to be dead, or by proper service of writ or other process, but shall not be compelled to go to trial in less than 3 months from the time of such suggestion filed or process served. Judgments or decrees recovered against the executor or administrator before revocation and vacation of the letters and decree may be opened on application by the presumed decedent, made within 3 months from the 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 3 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, it shall continue as a lien upon the presumed decedent's real estate in the county, as other judgments.
16 Del. Laws, c. 132, §§ 1, 2; Code 1915, § 3361; Code 1935, § 3826; 42 Del. Laws, c. 140, § 1; 12 Del. C. 1953, § 1710; 57 Del. Laws, c. 402, § 3; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1712 Probate of will produced after issuance of letters; effect upon prior administration.
(a) Whenever letters testamentary or of administration shall be issued upon the estate of any person presumed to be dead, in accordance with this chapter, 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 Court of Chancery in which the proceedings to establish the death by presumption have been held, setting forth the facts of the case, a copy of the 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.
(b) Upon the filing of such petition the Court of Chancery shall issue a citation to the person to whom letters of administration or letters testamentary have been issued, and to all persons interested in the estate of the presumed decedent, to appear upon a day fixed, and to show cause why the alleged will or later will should not be admitted to probate.
(c) Upon the return of the citation, if the Court of Chancery 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 the departure or disappearance from the residence, the 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 the 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 the 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 will according to its terms, and all property of the decedent shall be distributed and passed as provided by the will to the several legatees and devisees named therein. In case an earlier will shall have been admitted to probate, the letters testamentary issued thereunder shall be revoked, and letters shall be issued under the last will, or if no executor shall be named in the last will, then letters of administration with the will annexed shall be issued to the person entitled thereto. All the previous lawful acts of the removed executor or administrator shall be valid as provided in § 1545 of this title.
§ 1713 Costs.
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.