This is a proceeding pursuant to EPTL 2-1.7(a) commenced by the nephew of the alleged absentee to declare her dead and determine a date of death. Several hearings were held before the court in which the petitioner, the absentee’s nephew, two genealogists and the guardian ad litem appointed for the absentee took part.The uncontroverted proof adduced indicates that the absentee, if alive at the time of the hearing, would have been 105 years old. Her spouse, Herman, predeceased her in 1944 and the court’s file reveals the absentee was appointed the administrator of his estate and was his sole distributee as the petition listed no issue of the marriage. Moreover, the absentee was a former school teacher in the Bronx, retired from the New York City Board of Education on February 15, 1965 as per the records of the Teachers Retirement System for the City of New York (Retirement System). The absentee’s last known address for the absentee was 2860 Creston Avenue in the Bronx, an apartment building which she owned and sold in 1958. Upon retirement, the absentee left the United States and designated the Williamsburg Savings Bank as her agent to receive her pension payments, and upon receipt from the Retirement System, the bank in turn forwarded money to her abroad.The nephew’s brief testimony revealed that although the absentee was his father’s sole sibling, he last saw her when he was 12 years old and thus could not provide any details with regard to whether she was ever married, had children or any other detail of substance.The testimony of the first genealogist, Roger Toslyn, revealed that he was retained to glean as much information as possible regarding the absentee: her identification, place of birth and possible whereabouts. Although she was married, her husband predeceased her and he could not find any details regarding any possible issue. In 1958 an apartment building that she owned and resided in was sold and no further address could be ascertained. Finally, his testimony revealed that pursuant to a “so ordered” subpoena, records from the Retirement System were received which demonstrated inter alia, the absentee did not have a social security number as her employment predated the inception of the Social Security system, checks issued to the absentee were routinely cashed through November, 1996 and after the failure to cash pension checks beginning in December, 1996 the Retirement System suspended any further checks beginning in June, 1997 unless satisfactory proof was provided to the Retirement System.The second genealogist, Debra Braverman, testified that she was retained to pursue the absentee’s possible whereabouts in Germany, and more specifically whether there was a death report for the absentee abroad. She was aware that upon retirement the absentee traveled to Europe and her retirement checks were forwarded to her from the Williamsburg Savings Bank, her designated agent in the United States, upon receipt from the Retirement System. The absentee’s last known address was in Hamburg, Germany, specifically a postal address located at “Post 1 Reston.” Armed with this information, she contacted her colleague in Germany to perform searches in the town of the absentee’s parents birth, Ungenfeld, and Hamburg. Although the colleague did locate distant relatives who had heard the absentee’s parents emigrated to America, they could provide no specific detail. Further, the United States consulate was queried for any information concerning the absentee as consular officials are contacted in the event of an American’s demise, without a date of death they could provide no information.Upon the court’s direction, the hearing was adjourned for the petitioner to perform additional searches and publish death notices in Germany. Ms. Braverman directed the publishing of two death notices in Hamburg, the first in the Hamburger Abendblatt, the largest daily in the city, and the Hamburger Wochenblatt, a free daily of substantial circulation. The notice read: “Seeking information about Adele Campsen born in New York in 1905 to August Toebelman and Auguste Mueller. Last known address in 1996 was Post Reston 1, Hamburg. Anyone with knowledge of Ms. Campsen please contact [e-mail address].” No responses were received. Finally searches were made in eight districts in Hamburg for either proof of address or death for the absentee, all without success.The United States Passport Office and Department of State has no record of the absentee. Telephone books for the five boroughs, as well as Nassau, Suffolk and Westchester counties were examined to determine if there was a telephone listing for the absentee. All of these inquiries proved fruitless. Similarly, there is no record of death for the absentee in the New York City and New York State Health Departments.EPTL 2-1.7 (a) provides:(a) A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death.The guardian ad litem recommends the petition should be granted and specifically notes this matter has been difficult and complex because it is particularly difficult to prove a negative, i.e, the absentee is not living. To complicate matters, the absentee specifically opted not to have a fixed situs after she left the United States and her travels could have taken her to the four corners of the earth. Accordingly, the criteria of EPTL 2-1.7(a) has been met and the absentee is declared dead as of December 1, 1996. EPTL 2-1.7(a), (amended L. 1993, ch 514). The court notes that in this instance fixing the date of death to December 1, 1996 is especially proper inasmuch as deeming the absentee deceased three years later as per the statute would provide an undue windfall of an additional 3 years of pension payments as the Retirement System would be obligated to make payments from December, 1996 through December, 1999. Equity and the facts dictate otherwise. Letters of administration shall issue to the fiduciary of the post-deceased petitioner upon the posting of a bond in the penal sum of $250,000.As the guardian ad litem has not filed her affidavit of services, she is directed to do so upon the settlement of the decree to be entered hereon, at which time her reasonable compensation shall be fixed.Settle decree.
