13 Mills Surr. 493 | N.Y. Sur. Ct. | 1915
This is an application for letters of administration upon the goods, etc., of the decedent made by the latter’s brother. The decedent left him surviving as only heirs at law and next of kin, the petitioner and a sister. The sister having indicated that she desired notice of any application for letters, the surrogate exercising the discretion vested in him (Code Civ. Pro., § 2590) directed the issuance of a citation to her upon this application; and the sister upon the return of the citation filed objections to the petitioner’s appointment, upon the ground that the petitioner is improvident.
The allegations of fact in the objections apparently made on knowledge and upon which the surrogate would have to base a finding of incompetency to justify a denial of the application
Both the petitioner and the respondent are advanced in years and it is to be regretted that a misunderstanding should exist between them. The surrogate suggested as a compromise that on consent, letters, might be issued to both, but no agreement to that effect could be brought about and the petitioner now insists upon his appointment as a matter of right and his counsel withdraws the consent which he intimates he was willing to give to the appointment of both parties. The surrogate has absolutely no discretion in the matter, assuming that the petitioner is competent to act. (Coope v. Lowerre, 1 Barb. Ch. 45; Matter of Campbell, 192 N. Y. 312, 316, 319.) The right to letters of administration is statutory and. the surrogate derives his1 right to appoint from the statute and that only. His own personal preferences, if he have any, should play no part in the matter. Section 2588 of the Code of Civil Procedure provides" that “ Administration in case of intestacy must be
The court should hesitate before denying to a petitioner that which is his absolute right, upon the ground that he is incompetent by reason of improvidence. Improvidence means something more than that which is charged against this petitioner.
An examination of the cases in which the matter of improvidence was under consideration, I think clearly shows this.
In Emerson v. Bowers (14 N. Y. 449, 454), the court says: “ The words with which the term (improvidence) is associated, ‘ drunkenness,’ ‘ want of understanding,’ are of some importance in arriving at its true construction. The term (improvidence) evidently refers to habits of mind' and conduct which become a part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question.” In Coope v. Lowerre (supra), the court in consider-in the matter uses the following language (p. 47) : “ The
In Matter of Manley (12 Misc. Rep. 472), the court citing Matter of Shilton’s Estate (1 Tuck. 73), says: “ Improvidence and lack of understanding, in order to disqualify, must amount to a lack of intelligence.”
The fact that the petitioner lost his real estate, of itself, does not appeal to me as proof of improvidence, and the fact that he borrowed money from his brother also fails to convince me that I would be justified in concluding that he is improvident. I think that all of the matters with which' he is charged may have been the result of misfortune, instead of being caused by improvidence as defined by the cases from which quotations appear above. Ror am I of the opinion that indebtedness to the decedent at the time of his death, especially under the circumstances of this matter, is of itself any evidence of improvidence.
The respondent in his brief refers to Matter of Ferguson (41 Misc. Rep. 465), but in my opinion Matter of Ferguson is not controlling on this application. In that matter application was' made for the issuance of letters of administration with the will annexed by a person whose share in the residue of the estate was directed by the will to be kept in trust for him during the residue of his life, and the court after holding that such a person is not entitled to a preference in the administration of an estate with the will annexed as being a residuary legatee further held that even if he was so entitled, he was not a proper person to receive the same on the ground that he was improvident. It appeared, however, in that matter that the petitioner
Assxuning that all of the allegations of fact set up in the objections of the respondent are true, I do not feel justified in finding that the petitioner is incompetent in law to serve as an administrator.
The objections are therefore dismissed and the prayer of the petitioner granted. ¡No costs are imposed. The bond of the administrator will be fixed at $15,000, with leave to the respondent to apply for an increase in the amount of the said bond within five days after the service of a copy of the decree ¡hereip.
Application granted.