Coope v. Lowerre — 5 Sarat. Ch. Sent. 36

Majority

p. 36

Jacob M. Coope v. John M. Lowerre.

E. Sandford, for appellant;

H. F. Clare, for respondent.

Appeal from a decision of the surrogate of the city and county of New-York, appointing the respondent, Lowerre, administrator of his father’s estate. The Revised Statutes provides that administration, in case of intestacy, shall be granted to the relatives of the deceased who would be entitled to his personal estate, if they, or any of them, will accept the same, in the order specified in the statute. The 33d section of the title

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relative to granting letters testamentary or of administration* (2 R.‘S. 73,) provides that no letters of administration shall be granted to a person convicted of an infamous crime; not to any one incapable by law of making a contract; nor to an alien unless he resides in this State ; nor to a minor; nor to any one who shall be adjudged incompetent by the surrogate to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding; nor to a married woman.

In this case the chancellor decided, that under these provisions of the statute a surrogate has no discretion to exclude the person declared by the statute to be entitled to a preference, except for the causes specified in the 32d section.-^ That no degree of legal or moral guilt or delinquency is sufficient to exclude a person from the administration, as the next of kin, in the cases of preference given by the statute* unless such person has been actually convicted of an infamous crime. And that the conviction intended by the statute must be upon an indictment or other criminal proceeding.

That the improvidence contemplated by the statute as a ground of exclusion, is that want of care or foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished in value by his improvidence, in case administration thereof should be committed to the improvident person.

Decision of the surrogate affirmed, but without charging appellant with costs upon the appeal.