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A Buffalo man missing and unheard from for 34 years cannot be presumed dead and eliminated from his mother’s estate absent evidence of a “diligent” effort to ascertain whether he is deceased, an Erie County judge has held.

Erie County Surrogate Barbara Howe’s (See Profile) decision in Matter of Seals, 2014 NY Slip Op 50335, reaches back to century-old precedent in holding that anecdotal and hearsay evidence is nowhere near enough to declare someone dead for estate purposes. Howe’s decision means that Frank Thomas, if he is alive, has an inheritance waiting for him if he comes forward.

The decision resulted from a petition filed by the niece of Ida Seals, who died in early 2010. In her 1993 will, Seals, who was predeceased by her husband, left her belongings to her sons, Frank and George. George died in 2005 and no one in the family has seen or heard from Frank since 1980.

Seals’ niece, Bertha Hanns, sought a declaration that her cousin is dead.

But Howe, relying largely on the Court of Appeals’ 1919 holding in Butler v. Mutual Life Insurance Co., 225 NY 197, said that even though there is a general presumption that someone missing for several years is dead, the person invoking the presumption must prove “more than the mere fact of absence” and must produce “evidence to justify the inference that the death of an absentee is the probable reason why nothing is known about him.”

Here, the evidence shows that Thomas moved to Texas in early 1980 and, except for a brief communication with his mother shortly after arriving, has not been heard from since.

Seals traveled to Houston at least twice to search for her son, but failed to find him or obtain any information on where he was or what had happened to him. Additionally, family and friends with whom Thomas likely would have been in contact were he alive have not heard from him and there is no indication that he ever married, had children or adopted children, according to court papers.

But Howe said that is not enough, under Butler, an Appellate Division, First Department, holding that preceded it or more recent legislation.

Butler and Matter of Wagener, 143 App Div 286 (1911), both made clear that the death presumption is case-specific and can be invoked only where there is evidence that a diligent effort was made to ascertain that the individual is dead.

In Seals, Howe, said the petition is too heavily based on hearsay and “sheer guesswork.” She noted that Thomas had written to his mother in 1980, giving her permission to share his address with a couple of people, but asking her to “tell them to keep it to themselves.” Additionally, Howe said, Seals’ 1993 obituary notes that she was predeceased by her husband and her other son, but gives no indication that she had any belief that Frank was dead.

“There is nothing to show what Frank’s relationships with family and friends were when he moved to Texas in 1980,” Howe wrote in dismissing the petition without prejudice. “Likewise, there is not a scintilla of evidence to show that any efforts, diligent or otherwise, have been made to locate Frank by the estate or anyone else.”

Joseph LaTona of Buffalo, who appeared as guardian ad litem for Frank Thomas, declined comment. Dean A. Drew of Drew & Drew in Buffalo, representing the executor, was unavailable. Assistant Attorney General William Maldovan also appeared.