McGregor v. McGregor

33 How. Pr. 456 | NY | 1864

Johnson, J.

The first fourteen pages of the points submitted by the appellant’s counsel, are devoted to an argument to establish the proposition that the respondent, by reason of non-residence in this state, and his residence in another state within the United States, is an alien, and so incompetent to serve as an executor by statute. This proposition is so obviously erroneous and untenable, that little if anything more than a bare statement of it, is necessary to its refutation. Our statute, amongst other persons declarged to be incompetent to serve as executor, specifies “ an alien residing out of this state.” Bouvier, in his law dictionary, title alien, defines an alien to be “ one born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws.” This is the general and popular iinderstanding of the term, and is the sense in which it is employed in the statute. The respondent is conceded to> be a native of this state, and though not an inhabitant thereof at the time the will was proved, was not an alien, and not incompetent on that score.

Upon the subject of the incompetence of the respondent, by reason of the alleged occasional mental aberration, or general want of understanding, it is enough to say that he has been adjudged otherwise by the surrogate. The statute declares those not competent to serve, “ who, upon proof, shall be adjudged incompetent by the surrogate to execute the duties of the trust, by reason of drunkenness, improvidence, or want of understanding.” The surrogate has held upon the proof before him, that the understanding of" the respondent is not affected by any of the causes alleged, and that he is not for that reason incompetent to execute the duties of the trust. An examination of the proof before the surrogate, will show that there is no reasonable pretense for saying that any error has been committed in this respect. Residence out of the state does not disqualify, unless the person is an alien, and the distance of his residence in no respect affects his competence to serve. If the applicant is a non-resident of the state, he is not entitled to letters until he has executed the. requisite bond, which has been done by the respondent in this case. There is no reason whatever, for claiming that the respondent has renounced his appointment. The letters in question ha-ve been granted at" his express request, and after the most determined and strenuous opposition. It is not pretended that he has executed any instrument in writing to that effect, nor that his renunciation has been" declared or decreed by the surrogate, according to the provisions of the statute. There is no authority for the position that offering the probate of a will finally admitted to probate, • and favoring the probate of another instrument as the will, which is rejected, is in law a renunciation. Ho statute or court has so declared, and the acts themselves have no relation whatever to the question of the acceptance or renunciation of the appointment, after the will has been proved.

The statute (2 R. 8. 69, § 1), makes it the duty of the surrogate, when any will of personal estate shall have been admitted to probate, to issue letters testamentary thereon to the persons named therein as executors, if they are by law competent to serve as such. It then provides who shall be deemed incompetent to serve as an executor. I am of the opinion that any person appointed or named as execu'tor in a will, is to be deemed competent, unless he is declared incompetent by statute, and that it is the duty of the surrogate to grant letters to every person named as executor in a will, upon his application, who is not declared incompetent to serve by statute. He has no discretion to exercise in the matter, but must obey the requirements of the statute, which is the sole source of his power. To allow surrogates to invent new canses of disqualification, and add to those prescribed by statute, would be conferring novel and dangerous powers upon these officers of special and limited jurisdiction. But in any view of the case, the respondent was clearly competent to serve as executor, and having applied for letters in pursuance of his appointment by the will, the surrogate had no right to refuse them. The appeal seems to me to be entirely without merit.

The judgment of the supreme court is therefore right, and should be affirmed.

Affirmed.