41 Misc. 465 | N.Y. Sur. Ct. | 1903
The executor nominated under the will which- has been admitted to probate died before the issuance of letters testamentary. Application is made by Hamilton Pomeroy for the issuance of letters of administration with the will' annexed to him, on the ground that he is the residuary legatee, and therefore entitled to same under the provisions of section 2643 °f the Code of Civil Procedure. The question as to his rights to these letters turns, therefore, solely upon the question of whether or not he-is the residuary legatee within the meaning of such section of the Code.
But it seems to me that, even if Mr. Hamilton Pomeroy was entitled, as residuary legatee, to letters of administration with the will annexed, he is not a proper person to receive the same, on the ground that he is improvident, within the meaning of section 2661 of the Code. The generally accepted definition of “improvidence” is lack of prudence, care, and foresight, and this provision of the Code has been interpreted to mean as follows (Coope v. Lowerre, I Barb. Ch. 45):
“The improvidence which the framers of the Revised Statutes had in contemplation as a ground of exclusion is that want of care or foresight in the management of property, which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished, * * * in case administration thereof should be committed to such improvident person.”
With this legal definition of the meaning of this word, the matter is-therefore left to the sound discretion of the surrogate in the peculiar and special facts of each particular case. In this particular case it appears that Hamilton Pomeroy has not made a success of his business life. It appears that he has been a lawyer, a stenographer, a book agent, has acted as editor on some small fraternal paper, and been engaged in many things. It also appears that for a large portion of the time when he was engaged in the practice of law he was acting as clerk at a very moderate salary for a firm in New York City, and that his services were of a general character as lawyer, stenographer, clerk, and incidentally editor of a fraternal paper in which the persons were interested. It appears that he has been unable to support his family, and that the support of the children has been largely due to assistance received from his relatives, and it also appears that he has been almost continually borrowing from his brother, Ralph Pomeroy, various sums of money, mostly in small amounts. It may be that this man has been particularly the victim of bad luck, but, after listening attentively to' his own testimony and the evidence which was given in the matter, it seems to me that he belongs to one of that class of persons who seem to be absolutely incapable of making a success of their business life. This is further accentuated by his failure to make his living expenses conform to the amount of his earnings, thus necessitating repeated applications to near relatives for sums of money to relieve him from the indebtedness into which he had become involved. It seems to me that in testing the meaning of the word “improvidence” we should not limit it by a man’s ability to hold large sums of money which he has never obtained, but rather we should consider whether a man has care and foresight so as to be enabled to acquire any property. It seems to me, therefore, that to place a man who has been unable to- acquire any property to any extent whatever, who has been unable to make a success of his life, as trustee of a large estate of this kind, is subjecting the same to a risk which was not within the contemplation of the statute or of the testatrix. It is quite evident that this testatrix did not regard this Hamilton Pomeroy as possessed of suf
Application granted.