9 N.Y.S. 251 | N.Y. Sup. Ct. | 1890
This appeal presents the question whether the surrogate, in appointing a temporary administrator, must make his selection in the manner prescribed by statute for the appointment of a permanent administrator,—
The principal point upon which the appellant relies is that a temporary administrator must be chosen from among those absolutely or contingently entitled to permanent administration; that Ernst Plath, the only relative of the deceased who applied to be appointed temporary administrator, was qualified; and therefore that he, a large creditor of the estate, was entitled to be appointed, inasmuch as the public administrator had not intervened in the matter. A number of cases are cited in behalf of the appellant to the effect that a surrogate has no right to exclude from administration a person entitled to preference, except for some of the causes specified in the statute. All these cases but one, however, relate, not to temporary administration, but to applications for appointment as permanent administrator. The exception is a decision by the prerogative court in New Jersey to the effect that, under the law of that state, a brother has no claim to temporary administration on the ground of kinship, inasmuch as the statute establishing the right to administration does not apply to administrations pendente lite. Dietz v. Dietz, 38 N. J. Eq. 483. It is difficult to see how this case can be regarded as an authority in favor of the appellant. In our own state, the powers of the surrogate, with reference to the appointment of a temporary administrator, must be determined by reference to the provisions of the Code of Civil Procedure on that subject, and no qualification can be required in addition to those specified in the statute. Section 2668 prescribes that, upon the application of a creditor or person interested in the estate, the surrogate may, in his discretion, in either of the cases specified in that section, issue to “one or more persons, competent and qualified to serve as executors,” letters of temporary administration. The class of persons from whom the surrogate may make his selection of a temporary administrator is here clearly and definitely pointed out. He must choose from those who possess the capacity and qualifications to act as executors. Any one thus qualified may be appointed by the surrogate, in the .exercise of his judicial discretion. Ho is not limited in making his selection to persons entitled to 'ordinary administration under the statute. To hold that he was would be to introduce into the law a limitation and restriction which is not expressed in the language of the Code, or to be implied therefrom. It is important that the person intrusted with temporary administration should be not only competent and honest, but disinterested; and if he had to be either a relative or a creditor of the deceased it might often be very difficult to select a temporary administrator who should be indifferent, as between the parties, to a contest among applicants for permanent administration, or a contest over the probate of a will. It seems to us clear that the surrogate had the power to make the appointment which is attacked' in this