48 Misc. 489 | N.Y. Sur. Ct. | 1905
By the will of Jane Davis, deceased, which was ■admitted to probate on the ninth of December, 1904, all her property was devised and bequeathed to her sister, Delia Davis, and Delia was named as the sole executrix. Delia died before -Jane and the property of the latter, therefore, passed, by operation of law, upon her death, to her next of kin. Mary G. Stone, the only surviving niece of the testatrix, and George W. French, her grand-nephew, have both applied for letters of administration with the will annexed. These applicants both, belong to the third class of those entitled to letters of administration with the will annexed as prescribed by section 2643 of the Code of Civil Procedure. Mrs. Stone is nearer of kin to the deceased and has a larger interest in her estate and, for that reason, claims to be entitled to receive letters to the exclusion of Mr. French and her counsel have urged her rights upon me with great ability and earnestness. I am confronted with many authorities to establish the proposition that the applicant having the larger interest and being nearer of kin to the testatrix should be preferred.
All these authorities, however, exhibit and illustrate the difference between a preference among those who belong to the same class and the statutory preference of those belonging to •one class over those belonging to another. The latter prefer
Several reasons are urged upon me by counsel why I ought to appoint George W. French instead of Mrs. Stone. He and his brothers claim, collectively, to represent an interest in the estate as great as that of Mrs. Stone and they refer me to the language of Surrogate Bradford in Peters v. Public Administrator, 1 Bradf. 200-207, to the effect that “ Where there is no material objection on the one hand, or reasons for preference on the other, the court puts the administration into the hands of ■that person amongst those of the same degree of kindred, with whom the majority of parties interested are desirous of entrusting the estate.” I am also asked to note the language of Surrogate Rollins in the case of Quintard v. Morgan, 4 Dem. 168-173, where he says “ It is nevertheless true that her (Mrs. Quintard’s) application is favored by a much larger interest than the interest which has declared itself on the side of Mr. W. H. Morgan.” These expressions seem to- indicate an opinion that the common desire of several individuals, whose interests together amount to as much as the interest of one expressing a contrary
The counsel for Mr. French also press upon me the following reasons why I should appoint him in preference to ¡Mrs. Stone. In the first place, they urge that he is a man, and, therefore, likely to be better fitted to perform the duties connected with the administration of the estate. The statute recognizes the generally superior fitness of men for such positions by giving them a preference- where several persons of the same degree of kindred to an intestate claim to be entitled to administration and, in the same connection, preference is given to unmarried women over those who are married. This latter ground of preference does not rest upon caprice, but is founded upon reasons which Judge Finch, in Matter of Curser, 89 N. T. 401-404, says it is not difficult to discover and one of which he mentions in the following language: “ The possible influence of the husband over the wife in respect to administration, and his interference through -that influence, would be apt occasionally to provoke difficulty and hostility on the part of the actual relatives, viewing his suggestions or demands as the meddling of a stranger in blood." Then, too, it is said that Mrs. Stone is somewhat advanced in years and does not seem to have business experience adequate for the management of a large estate. I am referred to her examination taken before me as indicating that she does not possess those business qualifications which are almost necessary for the proper administration of so large an estate and one which now seems to be, to some extent, involved in litigation and likely to call upon an administrator, in an unusual degree, for the exercise of sound judgment and business experience. This latter
li^Es further urged upon me that Mrs. Stone, by reason of her having acted as administratrix of the estate of Delia Davis and settled that estate, in which Jane Davis alone was interested, •at a time when the latter was incompetent, is still accountable to the representatives of the etsate of Jane Davis, about to be appointed, for her administration of Delia’s estate; and that the fact that, for some time prior to the death of Jane, Mrs. Stone acted as her agent and attorney, took care of her business and administered her affairs, while she was incompetent, renders it improper for her now to be appointed the administratrix of Jane’s estate. It seems to me that this objection is well founded and that to place her in the position of administratrix would be to place one in a position of trust whose private interests may be in hostility to her duties as trustee. It is not necessary for me to hold that there has, in fact, been anything irregular or improper in Mrs. Stone’s administration of the estate of Delia Davis, or that she has been, in any way, unfaithful in her stewardship while acting as agent or attorney for Jane. The other persons who are interested in the latter’s estate have the right ■to require, however, that her acts in each one of these capacities should be scrutinized. Such scrutiny must be made by the administrator of Jane Davis’ estate. If she were appointed such
For these reasons I think that I ought not to appoint Mrs-Stone administratrix, but that I ought to select Mr. George W-French, who seems to be competent to perform the duties that belong to the office and whose appointment is requested by those-who represent a share in the estate equal to that of Mrs. Stone-Let a decree be entered accordingly.
Decreed accordingly.