1 Barb. Ch. 45 | New York Court of Chancery | 1845
The revised statutes provide' that administration, in case of intestacy, shall be granted- to the relatives of the deceased who would be entitled to his personal estate, if they or any of them will accept the same, in the order specified in the statute. And I - think the surrogate has no discretion to exclude a person,' declared by the statute to be entitled td a preference, except for' the causes specified in the thirty-second section of the title of the revised statutes relative to granting letters testamentary and of administration. (2 R. S. 75.) That section provides that no letters of administration
The fact that a man is dishonest, and seeks to obtain the possession of the property of others by theft, robbery, or fraud, is not evidence either of his providence or of his improvidence. For the dishonest man, who preys upon the rights of others and deprives them of their property by unlawful means, may be, and frequently is, not only careless but perfectly reckless in squandering the property which he has thus acquired. Or he may, on the other hand, preserve and hoard up his ill gotten gains with all a miser’s care. The evidence in this case tending to show the respondent’s dishonesty, and that he had been guilty of divers offences against the laws of society, but which could not throw any light upon the question of his providence or improvidence, should therefore have been excluded by the surrogate. Upon the same principle, the record of the large recovery against him in the crim. con. case, was improperly received as evidence before the surrogate; as it did not throw any light upon the question under consideration there. For that record only showed that, in a single case, the respondent had been found guilty of the deep moral offence of gratifying his criminal passions at the expense of a very heavy draft upon his purse. The case would have been very different if he had been guilty of frequent offences of this sort, and at considerable expense of property, from time to time. For that would have been evidence of great improvidence, as well as of deep degradation and guilt; and might have furnished reasonable grounds for believing that he was an unsafe and improper person to be entrusted with the administration of his father’s estate.
The only real and legitimate evidence of the respondent’s improvidence, in the acquisition and preservation of property, is that derived from his own examination when he was applying for the benefit of the insolvent act. And in reference to what he then said, it does not lie in his mouth, or that of his counsel, to say that the story he then told, in relation to the loss of his property, or as to the contracting óf the debts which were signed off by his supposed creditors, was a mere fiction. For it must be
The decision of the surrogate must therefore be affirmed. But this being a new question, under the provisions of the revised statutes, and the examination of the respondent before the recorder furnishing very considerable evidence of improvidence, I do not think it is a proper case to charge the appellant with costs upon this appeal.