Taylor v. Delancy

| Court for the Trial of Impeachments and Correction of Errors | Feb 15, 1805

Per curiam, delivered by Spencer, J.

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, and the 27th of March, 1801. The former of these statutes directs, “ that where any person dieth intestate, the widow, or next of kin, or any of them, of the deceased person if they, or either of them, will accept the same, &c. shall be deputed.” The latter statute ordains, “ that administration of the goods, and chattels, and credits of any persons dying intestate, shall be granted to the widow, or next of kin of the intestate, or some of them, if. they, or any of them, will accept the same.” These acts are of the description of revised laws, and if. susceptible of doubt in their interpretation, resort must be had to the law existing antecedently. By the constitution, the British statute of the 21st Hen. 8: regulating the granting of administrations was adopted and recognised as the law of the state. The 35th article of the constitution, ordains, that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony, as together did form the law of the said colony, on the 19th of April, 1775, should be and continue the law of this state, subject to such alterations and provisions as the legislature should from time to time make concerning the same. The statute of the 21st Hen. 8. became thereby the law of the state, and the 5th chap. 3d and 4th section of that statute in express terms, gave to the ordinary a right to accept one or more administrators when there was an equality of kindred, according to his discretion. The re-visors of the laws in-1787, well knew that this statute vested a discretion, and still we find no terms made use of negativing that discretion, or purporting to change the law. So far from this, it appears to me that the words “ or any of them,” in the act of 1787, if they were now to receive a construction for the first time, confer a discretion on the surrogate. My opinion is foiinded on this proposition, that where the law, antecedently to the revision was settled, either by clear expressions in the statutes, or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of the law, unless such phraseology evidently purports an intention in the legislature to work a change. A contrary construction might be productive of the most dangerous consequences. The quaintness of expression in some of the ancient British statutes, the circumstance of there being several statutes on the same subject, required in many cases, an entire change of language, but it has never, until now, been contended, that thereby an alteration of the law was to be inferred.

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^ that the surrogate had a discretionary power of selecting one to the exclusion of others, by which I mean a sound legal discretion not founded in. whim or caprice. .

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,