the time of such revocation, and shall transfer all assets remaining in his hands to the person as whose administrator he had acted, or to his duly authorized agent or attorney: Provided, Nothing in this act contained shall validate the title of any person to any money or property received as widow, next of kin, or heir of such supposed decedent, but the same may be recovered from such person in all cases in which such recovery would be had, if this act had not been passed.'

It is further provided that before any distribution of the estate of such supposed decedent shall be made to the persons entitled to receive it, they shall give security, to be approved by the orphans' court, in such sum as the court shall direct, conditioned that if the absentee "shall, in fact, be at the time alive, they will, respectively, refund the amounts received by each on demand with interest thereon, but if the person or persons entitled to receive the same is or are unable to give the security aforesaid, then the money shall be put at interest on security approved by said court, which interest is to be paid annually to the person entitled to it, and the money to remain at interest until the security aforesaid is given, or the orphans' court, on application, shall order it to be paid to the person or persons entitled to it."

After affording remedies in favor of the absentee in case the issue of letters should be subsequently revoked, the statute provides that the costs attending the issue of letters or their revocation shall be paid out of the estate of the supposed decedent, and that the costs arising upon the application for letters which shall not be granted shall be paid by the applicant. Public Laws, 1885, p. 155.

The plaintiff in error, Margaret Cunnius, now Margaret Smith, whom we shall hereafter refer to as Mrs. Smith, prior to and at the time of the passage of this act, was domiciled in the State of Pennsylvania. In virtue of her right of dower in certain real estate of her husband, which passed to him from his deceased mother's estate, she became entitled to the annual interest during her life on the sum of $569.61. This debt was

assumed by John M. Cunnius, who acquired the real estate from which the right of dower arose, and was in turn assumed by the Reading School District, in consequence of its acquisition from John M. Cunnius of the property. The School District paid the interest as it accrued to Mrs. Smith, at her domicil in the city of Reading, up to the first of April, 1888. In that year she left her domicil in the city of Reading, and for nearly nine years, up to March, 1897, she had not been heard from. At that date her only son, who resided in Reading, alleging the absence of his mother for the period stated, and the fact that she had not been heard from, and the consequent presumption of her death, made application to the register of wills, under the statute to which we have just referred, for letters of administration. After the reference of the matter to the orphans' court, as required by the statute, and the making of the publication and compliance with the other requisites of the statutes, the letters of administration which the statute authorized were granted. Under the authority thus conferred the administrator collected from the Reading School District the arrears of interest which had accrued on the right of dower of Mrs. Smith, from the date of the last payment made to her before her disappearance on April 1, 1888, down to the time of the appointment of the administrator. The administrator gave the School District a receipt and discharge. In 1899 Mrs. Smith sued the Reading School District in the Court of Common Pleas of Berks County to recover the arrears of interest which had been paid during her absence to the administrator appointed by the orphans' court. And the proof in the suit developed that at the time the proceedings against her as an absentee were initiated, and when the administrator was appointed, she was living in Sacramento, California. The School District relied for its defense upon the payment of the interest made to the administrator and the discharge which that officer had given under the law. Mrs. Smith asserted that the proceedings in the state court and the receipt of the administrator furnished no protection

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to the School District, because, as she was alive when the proceedings for administration were taken in the state court, those proceedings and the law which authorized them were repugnant to the Fourteenth Amendment to the Constitution of the United States. She, moreover, contended, even although there was power in the State to provide by law for the administration of the property of an absentee, the particular law in question was repugnant to the Fourteenth Amendment to the Constitution, as it did not provide for adequate notice, and because the law failed to furnish the necessary safeguards to give it validity. The case went to a jury upon legal points being reserved.

The trial court decided that Mrs. Smith was entitled to recover, because the Pennsylvania statute did not provide essential notice, and was, therefore, repugnant to the due process clause of the Fourteenth Amendment. The Superior Court, to which the case was taken, affirmed the action of the trial court on the ground that, as Mrs. Smith was alive when the proceedings to administer her estate as an absentee were had, that administration was void and the statute authorizing it was repugnant to the Fourteenth Amendment. 21 Superior Court Pa. 340. The Supreme Court of Pennsylvania, on appeal, reversed the judgments of the court below, and decided that the statute was a valid exercise of the police power of the State, and, therefore, both as to form and substance, was not repugnant to the Fourteenth Amendment. 206 Pa. St. 469.

Mr. Caleb J. Bieber for plaintiff in error:

Plaintiff was deprived of her property without due process of law. Whether property is taken without due process depends on the nature of each case. Leigh v. Green, 193 U. S. 79, 87; Del Castillo v. McConnico, 168 U. S. 674, 680. By leaving the State and not demanding arrearage of interest plaintiff ran no risk except to be barred by the twenty-one year state statute of limitations. She made her demand prior

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Argument for Plaintiff in Error.

to that time and any attempt to turn her claim over to another meanwhile deprived her of it without due process.

If her departure from Pennsylvania and her omission to demand her arrearages for a period of eleven years worked an injury to any one, it was to herself alone, and not to any public right such as would bring this case within the police powers of the State. Clapp v. Houg, 98 N. W. Rep. 710; Lavin v. Bank, 1 Fed. Rep. 641, 668. She was under no legal obligation to remain in Reading.

The object of the act is to administer on the estates of persons presumed, from all the evidence at hand, to be dead.

As to the construction of the act see Devlin v. Commonwealth, 101 Pa. St. 273. And while the state court has held that its object is to conserve the estate rather than distribute it, it still deprives a living person of his property without due process. Clapp v. Houg, 98 N. W. Rep. 710; and it is not the purpose but the effect of an act that determines its constitutionality. Pa. R. R. Co. v. Ribble, 66 Pa. St. 164; S. C., 92 U. S. 259; Carr v. Brown, 20 R. I. 217; Lavin v. Bank, 1 Fed. Rep. 641, 661; Davidson v. New Orleans, 96 U. S. 97, 102.

The orphans' court had no jurisdiction over the person of the plaintiff and could not, in the absence of personal service, or the voluntary appearance of the plaintiff in the proceeding, render a decree or order which would be binding on her personally. Herrman on Estoppel, p. 201, § 182; Boswell v. Otis, 9 How. 336; Lafayette Ins. Co. v. French, 18 How. 408; Pennoyer v. Neff, 95 U. S. 714.

Taking the private property of one person and transferring it to another, is not due process of law. Wilkinson v. Leland, 2 Pet. 627, 657; Ervine's App., 16 Pa. St. 264; Missouri R. R. Co. v. Nebraska, 164 U. S. 403; Johnson v. Beasley, 65 Missouri, 264; King v. Hatfield, 130 Fed. Rep. 583; Dodge v. Missouri Township, 107 Fed. Rep. 637.

The appointment of the administrator is open to collateral attack. Stevenson v. Superior Ct., 62 California, 65; Hamilton

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v. Brown, 161 U. S. 267. A void judgment or decree is always open to collateral attack. 1 Herman on Estoppel, 64.

For authorities on the invalidity of letters of administration upon the estate of a living person see Carr v. Brown, 20 R. I. 217; Clapp v. Houg, 98 N. W. Rep. 710; Lavin v. Bank, 1 Fed. Rep. 641; Scott v. McNeal, 154 U. S. 34, and cases cited p. 50.

To decide abstractly whether a State can by a statute clothe its courts with certain powers would not be to the point, because the same act of assembly may be valid as to some persons and the reverse as to others. Rothermel v. Myerle, 136 Pa. St. 250, 266; Presser v. Illinois, 116 U. S. 252. The persons as to whom an act is constitutional may not be before the court. Granting that the State through an act of assembly has clothed a court with certain powers, the real point at issue is the effect of the operation of those powers on the rights of the party before the court.

The legal situs of plaintiff's property, that is, the right to the arrearages of interest owing her by the School District, as well as the situs of the arrearages themselves for which the defendant was indebted, was in California at the time of the proceedings. New Orleans v. Stempel, 175 U. S. 310, 313, 314; Tax on Bonds, 15 Wall. 300, 320.

The proceeding under the act of 1885 is not of such a character as to constitute it a proceeding against property, thereby making it a proceeding in rem, for the property is not proceeded against nor taken possession of until after the appointment of the administrator in pursuance of a proceeding and a decree of a court of which the lawful owner of the property had no notice and to which he was neither party nor privy. See Leigh v. Green, 193 U. S. 79, 91; Leber v. Kauffelt, 5 W. & S. Pa. 440, 445.

Mr. Frederick W. Nicolls, by special leave of court, with whom Mr. William Rick was on the brief, for defendant in error. The act of 1885 created a jurisdiction in the orphans' court over the property of people living and coming within its terms