In re the Estate of Stephani

On the 10th of April, 1891, Alphonse J. Stephani was convicted of the crime of murder in the second degree,

The statute under which the proceeding was instituted (chapter 401, Laws 1889) provides :

“Section 1. Whenever any person has been convicted and sentenced to imprisonment in this state for life, the husband, wife, relatives or next of kin or any creditor of such person may apply to the supreme court, at a special term thereof in the judicial district in,which said person resided at the time of his conviction, for the appointment of a committee of such person’s estate, both real and personal. Sec. 2. Such application shall be made upon personal notice of not less than twenty days to such convicted person and to the district attorney of the county where the conviction was had, and upon notice to such other person as would be entitled to notice of application for the probate of the will of such convicted person if he were then dead leaving a will of real and personal property, to be given in like manner as notice of application for such probate. The application shall, among other things, set forth the amount of the property of such person, and the names and residence of his heirs at law and next of kin, as near as the same is known or can be ascertained by the applicant. Upon such application and due proof of the service of the notice herein required, the court may, in its discretion, appoint a committee of the estate of such convicted person. ”

The statute requires that all persons have notice of the application who would be entitled to notice of an application to probate the will, or for letters of administration on the estate of the convict, in case of his death. The statement that six of the persons mentioned in the petition are the next of kin of the convict is a •conclusion, there being no facts stated showing how alleged relationship arises. There is no allegation in the petition showing that the persons named as next of kin answer the description of the term “ heirs at law of the convict,” and the failure to allege in the petition, or to prove on the return of the citation, who answered the description of heirs, and that all had been duly notified, was a false defect. The statute requires that the application shall be made upon personal notice of not less than 20 days to the convicted person, and it also provides that a committee cannot be appointed until after the proof of the service of the notice upon the convicted person. The only evidence of service was an admission which purports to be signed by the convict in the presence of Charles F. Durston. The admission is not acknowledged, nor the genuineness of either signature proved in any way. This was not due proof of service of the notice required to be given by the statute. There are also two of the alleged next of kin as to whom there is no proof of service. Their alleged admission of service, not being proved, cannot be read in evidence.