2 Cai. Cas. 143 | Court for the Trial of Impeachments and Correction of Errors | 1805
The appellants’ counsel have insisted, 1st. That under the 5th section of the act, “ relative to the court of probates, the office of surrogate, and the granting of administrations,” there is no discretion vested in the surrogate, to select one of the next of kin in equal degree, where they all request administration, and are under no legal disability. 2d. That in this case, if such discretionary power is given by the act, it has been so exercised as to require correction by this court.
The only legislative provisions on the subject, are to be found in the acts of the 14th of February, 1787,
If this was a case wholly depending on the statutory provision, of the act of the 27th of March, 1801, (and to this as a revised law, the same observations are applicable, as have been made in relation to the statute of the 14th of February, 1787.J I should incline to the opinion, that the words, “ or any of them,” would vest a discretionary power in the surrogate, of making an election between those in equal degree. If, however, the words are doubtful, arguments from inconvenience would have a decisive and conclusive influence. Nothing could be more absurd than to require the surrogates to confer the right of "administering on all who are next of kin, and who may" desire it, when their numbers, their residence, their personal qualifications would, in prudence, require their exclusion. I am, therefore, clearly of opinion^
As to the second point, whether the abuse of discretion is a ground of relief here. I am not disposed to say, that there may not be cases where the exer-cise of a discretion in an unjust and illegal manner, would not be re-examinable and relievable. Of this there may be a doubt, and in the case of Preston and others v. Ferrard, 2 Bro. Pa. Ca. 179, the house of lords affirmed the chancellor’s order, 'on the ground that the act of 2d of Anne, had conferred on him a discretionary power to appoint guardians to the children of Romam Catholics. Without expressing a decided opinion on this point, it appears to me that the present case furnishes no facts from which the court can perceive an abuse of discretion. It is to be intended, that all decrees, solemnly pronounced, are just, until the contrary appears. The surrogate may have had good reasons to guide his discretion, of which we are not connusant. Neither of the parties, from any proofs in this cause, appear liable to any objection, except that the respondent is a female ; and this has been urged as one. It is a sufficient answer, to say, that the statute makes no discrimination as to the sexes ; and certainly, the court cannot consider that an objection, which the legislature have not. In my opinion, the decree appealed from ought to be affirmed.
Decree of affirmance,