1 Keyes 133 | NY | 1864
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 declared to be incompetent to serve as executor, specifies “ an alien residing out of this State.” Bonvier, 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 sen eral and
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 in competen t 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. Eesidence 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 have 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"counsel for the appellant has laid before us a very ingenious printed argument to sustain the" position that the respondent is disqualified from acting as executor by the spirit of the provision declaring an alien not. "being an ■inhabitant of this State incompetent to serve in that office. (2 R. S., 69, § 3.) The respondent is a native of this State, but, at the time of applying for letters testamentary, was domiciled in the State of Iowa. He was not an inhabitant of this State, but he was not, in any sense "known to the law, an alien. It would be quite preposterous to say that a native born citizen of this State becomes an alien to its laws by going to reside in another of, the" States in • the Union, or even in a foreign country. (See Ludlam v. Ludlam, June Term, 1863.) If even the respondent had been
The fifth class of persons-declared-by the statute tobe •incompetent to serve as .executors are those who, upon proof, shall be adjudged- incompetent, by the surrogate, to execute the duties of such trust, by reason of drunkenness, im,provi .deuce, or want of understanding. This language, doubtless, confers upon the surrogate a broad jurisdiction, as the nature of the subject eminently required. -Taken in connection with the other classes of disqualified persons mentioned in the same section-, it assumes- that there are those who are generally competent, to make contracts, and who are neither idiots, lunatics, or persons- of unsound mind, in the eye of the law, to whom it would yet be unfit to intrust the administration of the estate of a deceased person, though they should be selected for that purpose by ■ the testator. The defects alleged in. the' present case are improvidence and
The evidence certainly does disclose defects of temper which have sometimes exhibited themselves in a marked degree. It appears that the will of "the deceased, which has been admitted to probate, was contested before the surrogate on the allegation that it had been revoked or superseded by a later testamentary disposition. This later will was propounded hy one Buell, who took valuable interests under it, and with whom the respondent acted in concert in the situation. But it was pronounced against by the surrogate, and the earlier will admitted to probate, and the determination was finally affirmed in this court. The respondent’s brother, Duncan McGregor, the present appellant, presented the first will, and was the principal party on that side of the controversy. There was another litigation to which the respondent was a party which involved the title to a tract of land in Iowa claimed hy him, and upon which a town had been built, in which his brother, the present appellant, was united in feeling and action with the other party -to the controversy.
The evidence of intemperate expressions and conduct on the part of the respondent falls very far short of making out a case of lunacy or monomania, either permanent or temporary, as respects the respondent.
The statute clearly contemplates that one named as executor may receive letters testamentary though he be not a resident of the State. The provision is that the letters shall be withheld from a non-resident until he shall execute such
’■ It may chance that the respondent had conveyed away, without consideration, his interest in - the estate of the deceased, as legatee- and devisee, to his kinsman Buell; but I do- not see that this circumstance has any bearing upon the questions involved in this appeal: It is not necessary that
an executor should take an interest under the will, and the alienation of an interest actually given is not, therefore, a' disqualification. If it should be said that it indicates a disposition improperly to favor Buell, who had failed in establishing the later testamentary disposition which was rejected, it does not furnish a strange motive for an unjust or partial administration for the benefit of that interest that he would have had if he had continued to hold it himself.
I conclude that no error was committed in granting letters to the respondent, and am of opinion that the judgment appealed from should be affirmed.
All concur; Selden, J., not voting.
Affirmed.