Selden's Ex'or v. Kennedy

Citations

• 104 Va. 826
• 52 S.E. 635
• 1906 Va. LEXIS 151

Syllabus

<p>1. Administbation — Living Person — Presumption from Absence — Code, Sec. 3373 — Lack, of Notice — “Due Process” — Constitutional Law, The grant of letters of administration on the estate of a living person, as if he were dead is absolutely void; and if it be conceded that the Legislature intended by section 3373 of the Code to authorize the courts to grant administration upon the estate of a person who was once a resident of the State and has been absent therefrom and unheard from for more than seven years, irrespective of Ms death, the statute is a plain violation of the due process clause of the 14th Amendment to the Constitution of the Unied States. A statute which authorizes the taking of an absentee’s property and administering it when he is alive, without his knowledge or consent, and in a proceeding to which he is not a party, and of which he has no notice, is a clear violation of the “due process” clause of said Amendment.</p> <p>2. Laches — Defeating a Right — Case in Judgment. — Laches which will defeat a right must be such as to afford a reasonable presumption of satisfaction or abandonment of the claim, or such as to prevent a proper defense by reason of the death of parties, loss of evidence or otherwise. Whether the lapse of time is sufficient to bar a right must depend upon the particular circumstances of each case. In the case in judgment, the parties in interest are still living, no evidence has been lost by death, no records have been destroyed nor papers lost, there is no uncertainty as to the amount due, no pre- . sumption of payment, and the claimant cannot be said to have been guilty of such laches as will bar his right to recover.</p>