In re the Application on the Administration of the Goods of Zeph

In November, 1881, Edward Zeph was an inhabitant of Schenectady county in this state. He was indicted, tried and convicted of the crime of murder in the second degree, and sentenced to the - state prison for life, and is now in prison under such sentence. Fidel Zeph, the only brother of such convicted person, applied to such surrogate for letters of administration upon the estate of such prisoner, which were denied by the surrogate upon the ground that he possessed no jurisdiction to grant such letters, as the said Edward Zeph was still living. We are convinced that the decision of the surrogate was correct. The contention of the counsel for the appellant is, that by force of such conviction and judgment thereon, the said Edward Zeph became and is civilly dead, and that his estate became the subject of administration the same as though he were actually dead. We are satisfied that the provisions of the Code of Civil Procedure, 'from which surrogates derive their authority to grant letters of administration, have no application to a case of civil death, but apply only to cases of actual death.

It will be perceived by referring to section 2,660 of the Code of Civil Procedure, and the following sections upon that subject, that whenever mention is made of the estate

We think that the word decedent, as thus employed in framing the statute, was intended by the lawmakers to be understood and applied in the usual and ordinary sense of the term. Webster defines the word “ decease,” as follows: “To depart from this life, to die.” The word “decedent”' is defined, “ a deceased person.” There is nothing in the statute which we discover, which in the slightest degree-favors a construction that civil death was intended to be included, as a ground for granting such admistration. Indeed the entire proceedings in regard to administering™ the estates of deceased persons, seem to negative the idea that civil death was intended to be included within the cases provided for by such statute.

Such right to administration should not be extended by implication, doubtful construction or judicial legislation.. If it should be deemed safe and judicious, to include civil death, as a ground for granting such letters of administration, the legislature must furnish the remedy and not the court. The effect of imprisonment for life, upon the civil rights of the prisoner was considered in Avery v. Everett ( 36 Hun, 6 ), and upon appeal to the court of appeals, the-subject was elaborately discussed, and the decision of that court is to be found in 110 N. Y., 317 ; 18 N. Y. State Rep., 213. We understand such decision to be upon principle adverse to the contention of the -appellant’s counsel herein.

It was suggested by such counsel upon the argument that the discussion of that question in the court of appeals, should be regarded obiter We do not so regard it, as the question considered was involved in the case discussed by the members of the court and concurred in generally by all the judges -present, except Judge Earl, who delivered a. dissenting opinion.

Under such circumstances we must regard such question as within the determination of that court in that case and so far as it applies upon the question under consideration in this as conclusive herein. The order of the surrogate should be affirmed.

Learned, P. J., and Landon, J., concur.