#### Matter of Judicial Settlement of the Account of the Administrator, etc., of Mary M. White, Deceased.

(Surrogate’s Court, New York County,

May, 1900.)

Evidence — Presumption, of death.

Where a person has emigrated from a foreign country, without intending to return there, a .presumption of his death does not arise until inquiry has been made for him at his last known place of residence in this country.

Pboceedings upon judicial settlement of the accounts of an administrator.

Julian B. Shope, for alleged next of kin, claiming a share of estate.

John Whalen, Corporation Counsel (Charles A. O’Heil, of counsel), for public administrator.

Eitzgebald, S.

The deceased died about December 3, 1885, intestate, leaving certain personal property. Letters of administration were issued to the public administrator on January 9, 1886, and on January 27, 1891, the account of said administrator was duly settled and decree entered whereby the sum of $1,530.90 was directed to be paid to the city chamberlain. The ¿petitioners herein reside in Ireland, and are two brothers and two sisters of Edward Malone, who, it is claimed, was the father of the decedent, and who died before the decease of said Mary M. White. Said petitioners ask that a distributive share of the said sum in the *485hands of the city chamberlain, due them as next of kin, be paid over to them. Decedent was Mary Malone, daughter of Edward Malone and Bridget, his wife, whose maiden name was White, and the said decedent assumed the name of White, and was known in Ireland as Mary White, and in this country as Mary M. White. The-said deceased never married, and had a brother named John Malone. It is admitted that the deceased came to this country in 1851. At the time of making a deposit in the Seamen’s Bank for Savings, in 1868, said decedent stated that she had a- brother John and no sisters. There is no evidence that said brother has been sought in this or in any other country, and the sole • testimony in this matter was that no inquiry was made for said John Malone, at the last known place of residence of said deceased. The interrogatories and cross-interrogatories seem to identify the deceased as Mary Malone, of Raheen, Kilcooney,. county of Kings, Ireland, whose parents died during the famine and who came to this country some two' years after with her brother John, and that neither have been seen since or heard from by those in Ireland. The exceptions to the second, third, sixth and seventh findings are overruled. The exception to the eighth finding is sustained. The exception to the fourth is sustained in so-far as it relates to said brother John, and that he died here during the lifetime of the decedent, and unmarried. The referee should have found that the said brother John is still living. The exception to the fifth finding is sustained to the extent that the said brother should be included in decedent’s only next of kin, and, except as herein stated, the referee’s report is confirmed. As a result, the present application must be denied, with leave to the petitioner to renew his motion upon adducing sufficient evidence to raise the presumption of the death of John Malone, with or without next of kin or legal representatives. Matter of Estate of Tobin, 15 N. Y. St. Repr. 749; Lawson Presump. Ev. 264, rule 44 *et seq.*

Application denied.