West v. Mapes

4 Redf. 496 | N.Y. Sur. Ct. | 1880

Tins Surrogate.—It is quite clear that Mrs. Mapes, having first filed her petition, and executed the requisite bond, in case the sureties shall justify to the satisfaction of the Surrogate, will be entitled to letters in preference to Mrs. West, her sister, though it shall be adjudged that the statute giving preference to the unmarried sister has been repealed by implication, so that she is only required to produce her sureties for justification to secure her letters.

By section 33 of 3 R. S., 78 (6 ed.), it is provided that when there shall be several persons in the same degree of kindred to the intestate, entitled to administration, they shall be preferred in the following order: 1st. Males to females ; 3d. .Relatives of the whole blood to those of the half blood ; 3d. Unmarried women to such as are married.

When there are, several persons equally entitled, the Surrogate may, in his discretion, grant letters to one or more of such persons, but by section .5 of same statute, being section 2 of chapter 783 of the Laws of 1867, it is provided that married women shall be capable of acting, as executrices or administratrices, guardians of minors, and of receiving letters testamentary or of administration, or of guardianship, as. though they were single women.

I might, with,propriety, omit to pass upon the effect of the latter statute, until it shall be determined whether Mrs., Mapes shall perfect her bond, and take letters, because, in that event, Mrs. West would have no standing, as the so-called caveat tiled by her only raises the question of the sufficiency of Mrs. Mapes’s sureties ; and the suggestion that a reference should be made to enable her to show the propriety of granting her letters, instead of Mrs. Mapes, raises no question as to the fitness of the latter, and does not amount to a caveat; and the so-called caveat filed against the application of Peter is inoperative, for the reason.that the latter has made no application, but has renounced.

Section 5, above referred to, seems to empower a married woman to act as executrix, administratrix, &c., and to receive letters as though she were a single woman-; but if she is to be postponed, under section 83, above cited, to an unmarried sister, then she does not receive as though she were single, but her marriage is made á hindrance to her; and so long as an unmarried sister shall be preferred to her, section 5 cannot have its full operation; and for that reason, recognizing the general doctrine that a repeal of a statute will not be implied where, the two statutes can stand together, yet it seems to me that it is impossible to continue the preference provided by section,83, and still, maintain that she is, capable of receiving letters as though she were not married. One seems designed to put them on an equality, and the other to maintain inequality, and the subsequent section must therefore be held a repeal of the former statutes, thus inconsistent with the maintenance of a married woman’s equality with an unmarried woman.

I am, therefore, of the opinion that in case Mrs. Mapes shall not perfect her bond, Mrs. West, on her application, will be entitled to letters without citing her unmarried sister, who is not éntitleü to preference over her under the statute referred to.

Ordered accordingly.