3 Dem. Sur. 156 | N.Y. Sur. Ct. | 1884
Of the two persons who are applicants for letters of administration on this estate, one a son of decedent, the other a grandson, .the former is, of course, entitled in priority, unless he is
Upon the facts here presented, two questions arise for determination :
First. Does one, by reason of his conviction of an offense against the laws of a foreign state, ever become “ a person convicted of an infamous crime,” within the meaning of the statute above quoted ?
The signification of the term “infamous crime,” wherever that expression occurs in our statutes, is absolutely fixed by § 31, ch. 1, tit. 7, part 4, R. S.; 3 Banks, 7th ed., 2539. It is there declared that “ whenever the term infamous crime is used in any statute, it shall be construed as including every offense punishable with death, or by imprisonment in a State prison, and no other.” It follows, therefore, that the first clause of § 31, which prescribes the qualifications of administrators, must be construed precisely as if it were thus worded: “No letters of administration shall be granted to a person convicted of a crime
The correctness of this conclusion is emphasized by a consideration of the second clause of the statute which is here in question. That clause provides that letters of administration shall issue to no one “incapable by law of making a contract.” Manifestly, this incapacity is limited to incapacity under the laws in force within this State ; any other construction would be palpably absurd. By parity of reasoning, incapacity because of conviction for crime may well be regarded as limited to convictions under and by the laws of the State of New York.
The recent decision of the Court of Appeals, in the case of Sims v. Sims (75 N. Y., 466), subsequently approved in National Trust Co. v. Gleason (77 N. Y., 400), has an important bearing upon the question here at issue, if indeed it should not be regarded as decisive of it. The determination of those cases involved the interpretation of § 28, tit. 7, ch. 1, part 4, R S. (3 Banks, 6th ed., 994). “No person,” says that section, “ sentenced upon a conviction for
For these reasons, I feel bound to hold that Daniel O’Brien’s conviction, in New Jersey, of the crime of larceny does not necessarily disqualify him from becoming an administrator in Nbav York.
Second. There remains to be considered the question Avhether the Surrogate has discretionary poAver, even though the New Jersey conviction does not, as of course, work a disqualification, to refuse, because of such conviction, the issuance, to O’Brien, of letters of administration. It has been repeatedly determined by the courts of this State that the Avithholding of letters from a person who, if not by some cause incapacitated, Avould be entitled in priority under the statute, is never justifiable, save in cases Avhere such person is declared to be disqualified by the statute itself (Coope v. Lowerre, 1 Barb. Ch., 45; Emerson v. Bowers, 14 N. Y., 449).
The only statutory provision Avhich can possibly be
< “No degree of legal or moral guilt or delinquency is sufficient to exclude a person from administration as next of kin, in the cases of preference given by the statute, unless such person has been actually convicted of an infamous crime.”.....(This exception, as I have already decided, only includes persons convicted in this State). “ The improvidence which the framers of the Revised Statutes had in contem^plation, as a ground of exclusion, is that want of care or foresight in the management of property which would be likely to render the estate and effects unsafe, and liable to be lost or diminished in value, in case administration thereof should be committed to such improvident person. The principle of exclusion, in this part of the statute, is based upon the well known fact that a man who is careless and improvident, or who is wanting in ordinary care and forecast in the acquisition and preservation of property for himself, cannot with safety be entrusted with the management and preservation of the property of others. The fact that a man is dishonest, and seeks to obtain*163 the possession of the property of others by theft, robbery or fraud, is not evidence either of his providence or improvidence. The dishonest man, who preys upon the rights of others, and deprives them of their property by unlawful means, may be, and frequently is, not only careless but reckless in squandering the property which he has thus acquired. Or he may, on the other hand, preserve and hoard up his ill-gotten gains with all a miser’s care.”
The decision of the Court of Appeals, in McMahon v. Harrison (6 N. Y., 443), is not in conflict with the decision just quoted. In the trial below, the Surrogate had- decided, upon the authority of Coope v. Lowerre (supra), that a professional gambler was not, as such, improvident, within the meaning of the statutes declaring the qualifications of administrators. This judgment was subsequently reversed by the Supreme Court (McMahon v. Harrison, 10 Barb., 659). That court announced its adherence to the proposition that, under the provisions of the statute, “ vices and moral delinquency can not, of themselves, disqualify a person to act as administrator; ” but it decided, nevertheless, that a professional gambler, w'hose habitual occupation it was to put large sums of money at hazard upon games of chance, was, in the nature of things, an improvident person.
This view was subsequently approved by the Court of Appeals (6 N. Y., 443). The pursuit of gambling was pronounced as, in itself, a token of improvidence, but the general doctrine of Coope v. Lowerre was unhesitatingly approved. See also Emerson v. Bowers (14 N. Y., 449).
Letters mav issue.