55 N.J. Eq. 764 | New York Court of Chancery | 1897
I will first speak of the appeal first taken.
It is of course true that the orphans court could not pass by the next of kin -and appoint strangers to the blood of the-intestate without the consent of all the next- of kin, or witHout-proof that the non-consenting parties were unfitted for the office.
• The query now is whether he can be regarded as consenting to the decree because he was present; if so, he is not in a position in this court to ask for its reversal.
I am of the opinion that under the circumstances such consent should not be imputed to him. He was represented by his lawyer, whom-he supposed was insisting upon the right of his client to be the appointee. It does not appear .that Charles C. was specially consulted about the compromise appointment, It is not clear, even if he understood the order of the court, that he knew that it was made solely upon the ground of' his supposed -consent. It woiild not, therefore, have' occurred to him to express his dissent at the time, for he could not have supposed that such dissent would, in the least, have effected a change in the mind of the court. Taking into account that he is a layman, unused to judicial proceedings, and with a lawyer to act for him, •it would be urífair, I think, to impute to him a consent tó'the decree, from the fact that he was present in court at the time the decree was made. No consent therefore appearing, the decree cannot stand.
I now come to the transactions involved in the second appeal. The notice of appeal from the preceding decree was filed November 19th, and 'the petition of appeal was filed , in this court on December 1st. On December 14th the administrators appointed •under that decree were discharged, and on June 8th Zillah Rowers was appointed. , ..
When either party had perfected an appeal from the'decision •of the probate court, it'is erroneous for the probate court to grant an order affecting the rights of the parties as to the subject-matter of the appeal, for the reason that the proceedings
The appellant, who' has duly complied with the statutory regulations, deprives the' probate court of any power over the subject-matter during the pendency of the appeal. Green v. Clarke, 24 Vt. 136.
The question remains whether this court will send the record back to the orphans court or will make the appointment Of an administrator. It can do either. Dick. Pro. Ct. Prac. 201, 202.
The usual practice is to complete the judicial act in this court, as the proceeding is a trial de novo.
Inasmuch as, under an order of this court, testimony has been taken to be used here, it is proper that the appointment should be made here as it was in the case of Read v. Drake, 1 Gr. Ch. 78.
To whom should the appointment be awarded ?
Inasmuch as none of the next of kin save Charles C. and Zillah seem to desire the appointment, the choice lies between the two named.
Unless it appears that Charles C. is unfit, I think the appointment should go to him.
While there is no iron-bound rule which absolutely requires, the court to appoint one of several next of kin, yet age and sex, all else being equal, has usually controlled the judicial discretion in making the appointment. It is said that, other things being equal, the elder should be preferred to the younger, and a son to a daughter. 2 Redf. Wills 73.
These are both in favor of Charles C. Zillah is also married. She cannot act without her husband. Vice-Chancellor Van Eleet, in Cramer v. Sharp, 4 Dick. Ch. Bep. 558, 562, while refusing to express an opinion as' to whether a married woman is competent to take a grant of administration, held that if a grant is made to her, it must be in conjunction with her husband.
When the questions arise as to the advisability of the appointment of the widow or a child, the widow will be usually preferred; but if the widow has married again, while it is no invincible objection to her being administratrix, yet that circumstance may induce the court to prefer a child. 2 Redf. Wills 72;
If this testimony had been before the orphans court, and that court had not been misled by the supposed consent to the first appointment,'! think it would not have hesitated to appoint Charles C.
I shall advise a decree reversing the two decrees brought up by the two appeals, and a new decree appointing Charles C. Hill. He must give a bond in the sum of $20,000.