48 Misc. 325 | N.Y. Sur. Ct. | 1905
The will of Sarepta Raynor was admitted to probate on the 1st day of February, 1905, upon the petition of one John Emison, the executor named in the will. On that day objections were filed raising the question of Emison’s right to letters testamentary. It seems that in 1894 he had been convicted, or had plead guilty to the charge of grand larceny and had been sentenced to a state prison for a term of years. At ■the expiration of one year he was pardoned and the question presented is, whether such pardon so far restores his civil and legal rights as to entitle him to letters in spite of the positive inhibition of the statute. The statute declares that “ no person is competent to serve as an executor who at the time the will is proved * * * (4) shall have been convicted of an infamous crime.” It is urged on behalf of the contestant that pardon does not remove this disability, that while the statute provides relief for other disabilities (by giving proper bond) it is silent ■as to any relief for this particular disability, and that as the disability is created by statute it can be removed in no other way.
It seems to the court, however, that in the absence of any •¡distinct provision in the statute for the removal of the dis•ability following the conviction for an infamous crime recourse must be had the oases in which the general effect of such a pardon is defined. The earliest case which I have been able to ■find bearing upon the effect of a pardon is Matter of Deming, 10' Johns. 232. In this case the court held that, having been pardoned, Doming was entitled to the custody of Ms infant children, for whom a guardian had been appointed during his civil death. The court uses this language: “ The effect of the pardon was to acquit the offender of all the penalties annexed to the conviction, and to give Mm a new credit ■and capacity.’ This reasoning has been followed in all subsequent discussions of this question which I have found. It was said in Ex parte Garland (4 Wall. 380), referring to 'a pardon; “if granted
Knote v. United States (95 U. S. 153), is even stronger and Would seem' to be conclusive of the question. • “In contemplation of law, it (the pardon) so far blots out the offence, that •afterwards it cannot he imputed to him to prevent the assertion of Ms legal rightsOne of his legal rights is the right to act 'as executor of a decedent’s will unless some incapacity therefor is shown and an “ infamous crime,” for which the offender has been convicted but pardoned, cannot under the authority of the last case be imputed to him as evidence of such incapacity. See •cases cited in Roberts v. The State, 30 App. Div. 106, 160 N. T. 217. No present incapacity is urged. It is not disputed that ever since Emison’s pardon, bis life has been exemplary. That question is not raised. If he is to be refused letters now it must be solely because of his conviction in 1894. But in view of the cases above cited I do not think this conviction can ■be urged against him so as to prevent the issue of letters.
I, therefore, decide that the petitioner is entitled to letters "testamentary.
Decreed accordingly.
