Death of the intestate must have taken place, or the court will have no jurisdiction. Probate proceedings on the estate of a per son who is not dead are void; Fay v. Costa, 2 Cal. App. 241, 83 Pac. 275; Steele's Un known Heirs v. Belding (Tex.) 148 S. W. 592. A decree of the court is prima fade evi dence of his death, and puts the burden of disproof upon the party pleading in abate ment ; 3 Term 130; Munro v. Merchant, 26 Barb. (N. Y.) 383 ; Barkaloo's Adm'r v. Emerick, 18 Ohio 268.
Estates of obsentees. Statutes authoriz ing administration on the estate of an ab sentee after a fixed period, as if he were dead, have been held void as a deprivation of property without due process of law; Carr v. Brown, 20 R. I. 215, 38 Atl. 9, 38 L. R. A. 294, 78 Am. St. Rep. 855; Lavin v. Bank, 1 Fed. 641, 18 Blatchf. 1; Clapp v. Houg, 12 N. D. 600, 98 N. W. 710, 65 L. R. A. 757, 102 Am. St. Rep. 589; Savings Bank of Balti more v. Weeks, 103 Md. 601, 64 Atl. 295, 6 L. It. A. (N. S.) 690; Selden v. Kennedy, 104 Va. 826, 52 S. E. 635, 4 L. R. A. (N. S.) 944, 113 Am. St. Rep. 1076, 7 Aun. Cas. 879; in the absence of a statute; Scott v. McNeal, 154 U. S. 49, 14 Sup. Ct. 1108, 35 L Ed. 896 ; Springer v. Shavender, 118N. C. 53, 23 S. E. 976, 54 Am. St. Rep. 708 ; Devlin v. Com., 101 Pa. 273, 47 Am. Rep. 710 ; subsequently a statute was passed in Pennsylvania and held constitutional; Cunnius v. School Dist., 206 Pa. 469, 56 Atl. 16, 98 Am. St. Rep. 790; this judgment was affirmed in 198 U. S. 458,
25 Sup. Ct. 721, 49 L. Ed. 1125, 3 Ann. Cas. 1121, where the court distinguished the case from that in 154 U. S., supra, upon the ground that in the former case there 'was no statute, and that in the present one, a stat ute having been passed and the period of absence being fixed and not unreasonably brief, it was valid and not open to the ob jection of want of due process of law ; and similar statutes have been held valid; Bar ton v. Kimmerley, 165 Ind. 609, 76 N. E. 250, 112 Am. St. Rep. 252 ; Roderigas v. Savings Inst., 63 N. Y. 460, 20 Am. Rep. 555, which appeared for a time to stand alone and was frequently referred to as having been de cided by a mere majority of the court. The same statute was held invalid by the fed eral court in Lavin v. Savings Bank, 18 Blatchf. 1, 1 Fed. 641. So far as the federal constitution is concerned, the Pennsylvania case in Cunnius v. School Dist., 198 U. S. 458, 25 Sup. Ct. 721, 49 L. Ed. 1125, would seem to settle the question, at least so far as to determine that such statutes are not obnoxious to the XIVth Amendment of the federal constitution. So far as the state constitutions are concerned the cases differ, as appears by the above citations. The case in Maryland is put mainly upon the ground that the act contained no provision requiring that before the distribution of the property of the absentee, security should be given for its refund if he should prove to be alive.