Goldmann, Collester and Mintz. The opinion of the court was delivered by Mintz, J.A.D.
Plaintiffs moved for summary judgment. Their motion was denied. The court dismissed the complaint and entered final judgment in favor of defendants. This appeal ensued.
Plaintiff, Vincent T. DeSena, as guardian ad litem of his younger brother and two sisters (all minors) and in his own right, sues together with his adult brother John seeking a judgment requiring defendants, The Prudential Insurance Company of America (Prudential) and Metropolitan Life Insurance Company (Metropolitan), to pay into court the proceeds of certain life insurance policies which should be made available for the support of their infant brother and
sisters. Plaintiffs also allege that their father, defendant Vincent DeSena, and their late mother, Louise DeSena, jointly owned certain premises in Seaside Heights (presumably as tenants by the entirety). They ask for a judicial sale of the premises, and that the proceeds from the sale be made available for the support of their infant brother and sisters.
At oral argument we were advised that after the institution of these proceedings, the mortgagee instituted a foreclosure action. At the sheriff's sale conducted pursuant to the judgment in foreclosure, a surplus of approximately $4,800 was realized. The adult plaintiffs, waiving all rights they might have in the proceeds from the insurance policies and the surplus fund, request that the proceeds be used exclusively for the benefit of the infants.
This litigation has a tragic origin. Defendant Vincent DeSena, the father, on February 25, 1969 killed his wife Louise and the oldest daughter of the marriage, Julia, who was unmarried. At that time the infant Roseann was about 16, Anthony was 10 and Joanne 3.
Louise's life was insured by Metropolitan for $5,000, the designated beneficiary being her defendant husband. Julia's life was insured by Prudential and since she died through accidental means, Prudential concedes the policy is worth $12,000. Julia's father, Vincent, is the named beneficiary in said policy.
As was represented at the argument on the motion for summary judgment Vincent had a history of mental institutionalization, having been released from the mental hospital a few days prior to the killings. He disappeared after the homicides and his present whereabouts is unknown. Service was made upon him by publication and a default entered against him.
N.J.S.A. 3A:39-1 provides that when a person who has property in this state has absented himself for one year and his whereabouts is unknown, the Superior Court or the County Court of the county in which the person last
resided may appoint one or more trustees to manage his property under the direction and control of the court, and the trustee may dispose of the property or any part thereof as the court may deem proper. The law generally presumes a continuation of life until seven years have elapsed since the person has last been heard from. Vreeland v. Vreeland , 78 N.J. Eq. 256 (Ch. 1911); Tyll v. Keller , 94 N.J. Eq. 426 (E. & A. 1923); Keller v. Linsenmyer , 101 N.J. Eq. 664 (Ch. 1927); Moran v. Firemen's, etc., Comm. , 20 N.J. Misc. 479 (Cty. Cir. Ct. 1942). However, where the absence of the missing person is for less than seven years, upon proof of circumstances raising a counter presumption, his death may be found within the seven-year period. In re Bencel , 78 N.J. Super. 545 (App. Div. 1963). Absence for less than seven years cannot in itself be relied on as a factor in proving death. In re Zwiebel , 3 N.J. Super. 35 (App. Div. 1949). The Zwiebel court also held that where proof of death within the seven-year period is insufficient, "The Legislature, having in mind cases such as this, has made provision for the management and conservation of the absentee's estate and for the needs of his dependents during the seven-year period. R.S. 3:41-1 et seq. [now N.J.S.A. 3A:39-1]." Id. at 40; emphasis supplied. The absentee defendant, if alive, owes a duty of support to his infant children. Grotsky v. Grotsky , 58 N.J. 354, 356 (1971); Greenspan v. Slate , 12 N.J. 426 (1953).
Initially, Metropolitan challenges the power of this court to render a decision binding upon the absentee defendant, be he dead or alive. Reliance is placed upon New York Life Ins. Co. v. Dunlevy , 241 U.S. 518, 36 S. Ct. 613, 60 L. Ed. 1140 (1916), where a life insurance company attempted to set up the result of an interpleader action as a defense to a later suit by one of the rival claimants who was notified but not personally served within the state where the interpleader took place. The Supreme Court held that there was no ...