49 N.J. Eq. 558 | N.J. Super. Ct. App. Div. | 1892
This is an appeal from an order of the orphans court of the county of Hunterdon, committing the administration of the personal estate of Ann Sharp, deceased, to the respondent Jacob F. Sharp. Mrs. Sharp died intestate on the 12th day of July, 1891, leaving, as her next of kin, two sons and three daughters and six grandchildren, the children of three deceased sons. The respondent is the eldest of the decedent’s two surviving sons. On his applying for administration, the other son and one of the
Both parties have been heard here by their proofs. The first charge does not appear to have any foundation in fact. The evidence entirely fails to establish it. The second, however, is true, by the respondent’s admission, to this extent: He, as one of the executors under his father’s will, sold a house and lot, situate in the city of Newark, to his brother-in-law, the husband of the -female appellant, under an arrangement by which he was to receive one-half of whatever profit might be made on a resale of the property. He, in addition, admits that he would not-have sold the property for the sum bid by his brother-in-law if he had not believed that his brother-in-law intended to make a division of profit. The arrangement was not carried out. The ¡purchaser swears that, although it is true such an arrangement
The rule prescribed by the statute, regulating the granting of administration, is, that it shall be granted to the widow or next of kin of the intestate, or to some of them, if they, or any of them, will accept. Rev. p. 758 § 28. Our statute is, in substance, a duplicate of 21 Hen. VIII. ch. 5 § 3. 1 Wms. Exrs. 416. Where there is no widow, administration must be granted,, as was said by the present surrogate-general, in Donahay v. Hall, 18 Stew. Eq. 720, 721, to the next of kin, if one of them, who-
Under this view of the law, it would seem to be clear that, as the respondent was one of the next of kin of the intestate and the choice of the majority of interests, his appointment was entirely proper, unless his misconduct operated, as a matter of law, to totally disfranchise him. I know of no adjudication which declares that a single breach of duty or a single act of dishonesty will produce such a result. No doubt can be entertained, as Chancellor Walworth held, in Coope v. Lowerre, 1 Barb. Ch. 45, 47, that where the appointing power has a discretion to select one or more persons of a class, it should, in deciding to whom the grant shall be made, give full consideration to the moral fitness and integrity of the several claimants. But the application of that rule to this case will not result in the reversal of the order under consideration. The male appellant has been guilty of the same kind of misconduct with which the respondent is chargeable. He, while acting as executor under his father’s will, purchased one of his father’s farms, and still retains the title to it. Besides, he has shown, by his acts, that he has full confidence in the respondent’s honesty and business capacity. He and his co-executor made the respondent the financial agent of the testator’s estate, by deputing to him the duties of receiving and disbursing the moneys of the estate and keeping the accounts. He still retains that position. The female appellant is a married woman. Without expressing an opinion on the question whether or not a married woman is competent, in any case, to take a grant of administration, I regard it as quite certain, in view of the provisions of the one hundred and twenty-second section of the Orphans Court act (Rev. p. 779), which declare that, in case of the marriage of any female administratrix, her power over the estate shall immediately cease and be sus
All things considered, my conclusion is, that the order appealed from should be affirmed, but without costs. Neither party will be allowed either costs or counsel fees out of the estate. Where the contest is, as in this case, as to which of two or more persons shall be appointed an administrator, the costs of the litigation should, as a general rule, be imposed on the parties, or on one of them, and not on the estate. To impose them upon the estate will, as is obvious, serve to encourage a species of litigation which ought, in many instances, to be discouraged rather than encouraged,