Appointment of Executors and Administrators;-Of Administrators.

66. Appeal from order rejecting alleged will. The surrogate cannot appoint an ad58. If an executor de son tort take out ministrator after an instrument propounded letters of administration, it legalizes the acts for proof, as a will, has been rejected by him which were before tortious. [Andr., 328; 3 as null and void, and the party propounding T. R., 587.] Supreme Ct., 1811, Rattoon v. it has appealed from his decision, and given Overacker, 8 Johns., 126; S. P., Chancery, the bond required by law to effect a stay. 1844, Vroom v. Van Horne, 10 Paige, 549. The proper course to protect the estate is to 59. And this rule is not altered by the Re-appoint a collector, under Laws of 1837, 528,

Appointment of Executors and Administrators;-Of Administrators.

23. Supreme Ct., 1851, Hicks v. Hicks, 12 Barb., 322.

67. Existence of assets. For the purpose of granting administration, a debt is assets only where the debtor resides, and this, though he resides in one State, and transacts business in another. N. Y. Surr. Ct., 1850, Kohler v. Knapp, 1 Bradf., 241.

68. The liability of a foreign executor or administrator to account in the State where he was appointed, is not assets in another State. N. Y. Surr. Ct., 1849, Sedgwick v. Ashburner, 1 Bradf., 105; 1850, Kohler v. Knapp, Id., 241.

73. The court will not, on appeal, review his discretion, where no abuse appears. Ib.

74. Petition. Under 1 Rev. L. of 1813, 445, § 3, a petition for letters of administration, stating the death and intestacy, in general terms, and sworn to, "on the best of petitioner's knowledge and belief," was sufficient. Only two facts were necessary to give the surrogate jurisdiction, viz.: death, and that the deceased was an inhabitant of the county. Preliminary proof of these facts is not necessary to give jurisdiction. Ct. of Appeals, 1851, Sheldon v. Wright, 5 N. Y. (1 Seld.), 497; affirming S. C., 7 Barb., 39.

69. Temporary situation of an article of trifling value, in this State, in the possession of a bailee,-Held, not to be the existence risdictional defect. Ib. here of assets which would form the subject of administration. N. Y. Surr. Ct., 1850, Kohler . Knapp, 1 Bradf., 241.

75. An omission to cite the next of kin, pursuant to section 6 of that act, is not a ju

76. Absent next of kin. Being nearer of kin to the decedent than any other person in the United States, does not entitle to admin70. Funds remitted. A grant of adminis-ister. If the next of kin is not here, or is letration cannot be founded on funds trans-gally disqualified, the public administrator is mitted here, by a foreign executor, to be paid over in pursuance of the will. N. Y. Surr. Ct., 1849, Sedgwick v. Ashburner, 1 Bradf., 105.

71 An executor of a decedent who was domiciled in Massachusetts, took out letters in India and collected a debt there, and transmitted to S., a co-executor, who resided in New York, but had taken out letters in Massachusetts, bills for the amount of a share thereof belonging to A. under the will, with directions to indorse them without recourse,

and deliver them.

Held, that although the executor S., took out letters in New York, and named the bills in the inventory, and although A., the legatee, refused to accept the bills in release of the foreign executor's liability, neither the bills nor their proceeds were assets in the hands of S., and that he must be deemed to have received them as the agent of the foreign executor or of the legatee. Ib.

entitled. Chancery, 1829, Public Administrator v. Watts,* 1 Paige, 347.

to be granted to the relatives, who would be en77. Order of preference. Administration, titled to succeed to personal estate, if they or any of them will accept, in the following order: 1, to the widow; 2, to the children; 8, to the father; 4, to the brothers; 5, to the sisters; 6, to the grandchildren; 7, to any of the next of kin who would be entitled to share in the distribution of the estate. If any person so entitled or guardian will accept the same, then to the be a minor, then to the guardian; if no relative creditors; and creditors first applying, if competent, entitled to preference; if no creditor apply, then to any competent person; but in the city of New York, the public administrator has preference after the next of kin, over creditors and all others; and in the other counties, the county treasurer has preference next after creditors, over all others; and in the case of a married woman dying intestate, her husband has preference to any others. 2 Rev. Stat., 74, § 27.

78. Order of right to administration stated. Matter of Root, 5 N. Y. Leg. Obs., 449.

79. The relatives of a decedent entitled to

72. One of several equally entitled. Under 1 Rev. L. of 1802,-directing administration to be issued to the widow, or next of administer upon his estate, under 2 Rev. Stat., kin, or some of them, if they, or any of them, 3 ed., 138, § 28, are such only as are entitled, will accept (as well as under 21 Hen. VIII., ch. at the intestate's death, to a distributive por5, 3, 4),—the surrogate may, in his discretion of the estate, in preference to the public tion, grant administration to any one of the administrator. The widow or next of kin of next of kin, to the exclusion of the others in such relatives as die before administration equal degree; and to a woman to the exclu- granted, do not thereby become entitled to the sion of a man. Ct. of Errors, 1805, Taylor v. Delancy, 2 Cai. Cas., 143.

* Reversed on other points, S. C., 4 Wend., 168.

Appointment of Executors and Administrators;-Of Administrators.

preference as relatives. N. Y. Surr. Ct., 1849, Public Administrator v. Peters, 1 Bradf., 100. 80. Administration belongs of right to the relatives of the decedent who are entitled to share in the distribution of the personal estate, without reference to real estate. N. Y. Surr. Ct., 1851, Sweezey v. Willis, 1 Bradf., 495. 81. Indebtedness to the estate does not render one of the kin incompetent to administer, nor impair his right of priority. N. Y. Surr. Ct., 1853, Churchill v. Prescott, 2 Bradf., 304. 82. The guardians of infants have prior right over creditors of the estate and other persons having no right to share in the estate, but not over any of the relatives mentioned in 2 Rev. Stat., 74, § 27, whatever may be the sex or degree of kindred of the minor. Supreme Ct., 1853, Wickwire v. Chapman, 15 Barb., 302. 82 a. Appointment, as administrator, of a guardian whose appointment was erroneous, invalid where there are relatives entitled to priority. White v. Pomeroy, 7 Barb., 640.

appeal and stay of proceedings, letters had not been granted. Pending the appeal, a special act was passed vesting the interest of the People in the estate in the children of the decedent's mother, and directing administration to be granted to them, or some one of them. Held, that the previous order was revocable, and that neither the British crown, claiming the property in default of lineal descendants of the intestate, nor the public administrator, was entitled to be heard in opposition to the application of one of the children for letters. N. Y. Surr. Ct., 1850, Peters v. Public Admin istrator, 1 Bradf., 200.

87. When there are several of the same

degree of kindred entitled, they are preferred thus: 1, males to females; 2, the whole blood to the half blood; 3, unmarried women to married; and when there are several equally entitled, the surrogate may grant letters to one or more. 2 Rev. Stat., 74, § 28.

88. Nomination. One entitled to adminis

tration, in preference over others, can only deprive the others of their right by taking letters himself. He cannot nominate a third party. N. Y. Surr. Ct. (1847?), Matter of Root, 5 N. Y. Leg. Obs., 449; Matter of Ward, 6 Id., 111.

83. Where the intestate is illegitimate, and unmarried, and being domiciled in England, she could, by the law of England, have no legal kindred, except lineal descendants [1 Harg., 92], a lawful son of the mother of the intestate has no right to a distributive share in the estate of the decedent, and consequent89. Disregarding preference. The surroly is not entitled to letters of administration gate has no discretion to exclude a person, dehere. N. Y. Surr. Ct., 1850, Public Adminis-clared by the statute to be entitled to a prefertrator v. Hughes, 1 Bradf., 125. ence, except for the causes specified in section 32. Chancery, 1845, Coope v. Lowerre, 1 Barb. Ch., 45.

84. Proof of illegitimacy. Where administration is claimed by a party as son of the decedent, and his legitimacy is denied by the public administrator, no kindred intervening, proofs must be taken, and the question of interest determined. N. Y. Surr. Ct., 1855, Ferrie v. Public Administrator, 3 Bradf., 151.

85. Where the alleged marriage of the intestate, and the birth of the person claiming to be her son, occurred in France, and the proofs indicated that more satisfactory evidence might be procured at the place of the domicil of the parties at the date of the events in controversy, a commission was directed to issue for the purpose of instituting the proper inquiries relative to the relationship of the claimant and the intestate. Ib.

90. Where the surrogate has jurisdiction to grant letters, his error in appointing a stranger to the exclusion of a brother of the deceased, does not make the letters void. They are merely voidable. Supreme Ct., 1847, Flinn v. Chase, 4 Den., 85.

91. Husband, if competent, solely entitled to To what extent administer his wife's estate. liable for her debts. 2 Rev. Stat., 75, § 29.

92. A husband is entitled to administer upon the estate of his intestate wife; and her personal property, after payment of her debts, belongs absolutely to him. The married woman's act, 2 Rev. Stat., 4 ed., 331, is for the benefit of the wife and not of her next of

86. Special statute. The intestate, an il-kin. Supreme Ct., 1853, Shumway v. Cooper, legitimate, domiciled in England, having died, 16 Barb., 556. Approved, Ransom v. Nichols, leaving assets in New York, an order for a 22 N. Y. (8 Smith), 110. grant of administration was made to the public administrator, but in consequence of an

93. The acts of 1848 and 1849, for the protection of married women, have not affected

Appointment of Executors and Administrators;-Of Administrators.

the husband's right to administer her person-petent to discharge the duties of executor or alty, in case of intestacy; he has still the sole administrator. And where an applicant is right to administer, and, as administrator, to shown to have been such, it will not be preretain the estate, after payment of debts, to his sumed, from the mere lapse of time, at the own use. The husband's right to administer end of twenty months, that his employment does not arise from his right to succeed, but has been changed. Ct. of Appeals, 1852, rather his right to succeed grew out of his McMahon v. Harrison, 6 N. Y. (2 Seld.), 443; right to administer. N. Y. Surr. Ct., 1849, S. C., 10 N. Y. Leg. Obs., 289; affirming S. C., McCosker. Golden, 1 Bradf., 64; and see 10 Barb., 659; and reversing S. C., 1 Bradf.. Lush. Alburtis, Id., 456. Supreme Ct., 1859, 283. Vallance. Bausch, 8 Abbotts' Pr., 368; S. C., 28 Barb., 633.

94. Foreign executor or administrator. One who has obtained in another State, letters on the estate of a decedent not an inhabitant of this State, is entitled to letters here, in preference to creditors or others except the public administrator of New York city. 2 Rev. Stat., 75, § 31. 95. Incompetency. Letters of administration not to be granted to a person convicted of an infamous crime, nor to one incapable by law of making a contract, nor to one not a citizen of the United States unless such person reside within this State, nor to one under age, nor to one judged incompetent by the surrogate, by reason of drunkenness, improvidence, or want of understanding, nor to any married woman; but where a married woman is entitled to administration, the same may be granted to her husband in her right and behalf. 2 Rev. Stat., 75, 32, as amended by Laws of 1830, 390, ch. 320, § 18.

100. Illiterate. The facts that an executor is illiterate, and of small pecuniary means, and has been guilty of misconduct or mismanagement in administering the estate, do not authorize the surrogate to supersede the letters-testamentary; though such facts might warrant an order requiring security. Ct. of Appeals, 1856, Emerson v. Bowers, 14 N. Y. (4 Kern.), 449; reversing S. C., 14 Barb., 658.

101. Appeal. The decision of a surrogate upon the question of competency of an applicant for letters, is subject to review on appeal. Ct. of Appeals, 1852, McMahon v. Harrison, 6 N. Y. (2 Seld.), 443.

minor, letters are to be granted to his guardian, being in all respects competent, in preference to creditors or others. 2 Rev. Stat., 75, § 33.

102. Minor. If one otherwise entitled, be a

be granted to one or more competent persons, 103. Joining stranger. Administration may although not entitled, with the consent in writing and filed, of the person entitled, to be joined with such person. 2 Rev. Stat., 76, § 84.

96. No degree of legal or moral guilt, or delinquency, is sufficient to justify the exclusion of a person entitled to preference as next of kin, unless such person has been actually convicted of an infamous crime, upon an in- 104. The surrogate has no authority to join dictment or other criminal proceeding. Chan-with the person entitled to letters, a person cery, 1845, Coope . Lowerre, 1 Barb. Ch., not entitled, without the written consent of 45; approved, McMahon v. Harrison, 6 N. Y. the former. [See 2 Cas. t. Lee, 573; 2 Phill., (2 Seld.), 443; and see S. O. below, 10 Barb., 115, 101, 55; 1 Id., 123; 4 Hagg., 376, 398; 659; 1 Bradf., 283; see, also, Emerson v. 1 Lee's Cas., 348.] N. Y. Surr. Ct., 1850, Bowers, 14 N. Y. (4 Kern.), 449. Peters o. Public Administrator, 1 Bradf., 200.

97. 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 endanger the estate, or diminish its value. Chancery, 1845, Coope v. Lowerre, 1 Barb. Ch., 45. 98. The term "improvidence" refers to such habits of mind and body as render a man generally, and under all ordinary circumstances, unfit to serve. Ct. of Appeals, 1856, Emerson . Bowers, 14 N.Y. (4 Kern.), 449; reversing S. C., 14 Barb., 658.

one applies for administration, either with the 105. Renunciation of prior right. Where will annexed, or in case of intestacy, and others have prior right, their written renunciation must be filed with the surrogate, or a citation be issued to all persons having such prior right, to show cause at a day specified. 2 Rev. Stat., 76, § 35.

106. Mode of service of citation prescribed. 2 Rev. Stat., 76, § 36.

107. Where several persons are equally. entitled to letters, and one applies, it is not necessary to cite the others; a citation is necessary only where there are persons hav99. Gambler. The fact that a man is a ing a prior right. [2 Rev. Stat., 8 ed., 139, professional gambler, is presumptive evidence § 36; 2 Curt., 28, 55.] N. Y. Surr. Ct., 1850, of such improvidence as to render him incom-Peters v. Public Administrator, 1 Bradf., 200.

Appointment of Executors and Administrators;-Of Administrators with the Will annexed.

108. Failure to appear. Where the person entitled to administer, being cited, upon the application of another for administration, did not appear, and such other failed to perfect his proceedings by giving bond and taking out letters,-Held, that the former had not lost his right to preference. N. Y. Surr. Ct., 1850, Harrison v. McMahon,* 1 Bradf., 283.

109. Attorney-general to be cited, unless it be shown that the decedent left kindred. 2 Rev. Stat., 76, § 37.

110. Revoking renunciation. A renunciation may be retracted by executors at any time before the grant of administration. This is rather a matter of right, than a privilege within the discretion of the surrogate. Renunciation of the right to administer is governed by the same rule. N. Y. Surr. Ct., 1856, Casey v. Gardiner, 4 Bradf., 13.

111. At an early stage of the cause, the public administrator had renounced his priority in behalf of a creditor contesting the administration with the next of kin, and he subsequently withdrew the renunciation and claimed letters. Held, that it was not in the discretion of the court to refuse permission.

lb.

112. Revoking letters. A surrogate has no power, pending an appeal from his order requiring an administrator to give additional security, to revoke the letters. Chancery, 1841, Vreedenburgh o. Calf, 9 Paige, 128.

113. A court of another State can have no jurisdiction to revoke letters of administration granted in this. Supreme Ct., 1844, Chapman v. Fish, 6 Hill, 554.

and misrepresentation under mistake is a false representation within the act. V. Chan. Ct., 1839, Perley v. Sands, 3 Edw., 325.

117. The statute applies to cases of letters granted before its enactment. Ib.

118. The surrogate should revoke letters of administration, obtained upon a false suggestion of a matter of fact, and without due notice to the party rightfully entitled to administration. [1 Lee Ecc., 14, 121, 357, 418; 3 Hagg, 243.] Chancery, 1846, Proctor v. Wanmaker, 1 Barb. Ch., 302.

be revoked, upon an unproven allegation of the existence of a will, or that a will shown to have been executed was lost or fraudulently destroyed. N. Y. Surr. Ct., 1853, Holland v. Ferris, 2 Bradf., 334; and see Bulkley v. Red

119. Letters of administration should not

mond, Id., 281.

120. Resignation. A surrogate has no power to accept the resignation of an administrator, except in the cases provided by the statute. So held, even where he erred in appointing him, to the exclusion of one who had a right to the appointment. Supreme Ct., 1847, Flinn v. Chase, 4 Den., 85.

121. Acts of administrator done in good 2 faith, before appointment of executor, valid. Rev. Stat., 78, § 46; 79, § 47.

8. Of Administrators with the Will annexed.

122. The term "administrators" in the statutes includes, in general, administrators with the will annexed. N. Y. Surr. Ct., 1851, Exp. Brown, 2 Bradf., 22.

123. Order of preference. Where letters of administration with the will annexed are 114. Surrogate may revoke letters granted on false representations, or where the administra- granted in cases where letters testamentary tor has become incompetent by reason of drunk- had not been issued, and there is no executor enness, improvidence, or want of understanding, to take, or where they are issued on the death or where an administratrix marries. Laws of of an administrator with the will annexed, 1837, 530, ch. 460, § 34; and see Carow v. Mowatt, 2 Edw., 57. they issue to persons in the following order of 115. Also where, after letters of administra- preference: 1. Residuary legatees. 2. Printion granted, a will is proved. 2 Rev. Stat., 78, cipal or specific legatees. 3. The widow. $46. 4. Next of kin. 5. The public administrator in the city of New York. 6. Creditors. 7. Any person not interested, who will accept. In other counties than that of New York, the county treasurer takes such letters next to the creditors. N. Y. Surr. Ct., 1848, Matter of Ward, 6 N. Y. Leg. Obs., 111.

116. Though under the Revised Statutes, the surrogate had no power to recall letters of administration, the act of 1837 (2 Rev. Stat., 8 ed., 319, § 7) confers that power where the letters were obtained by false representations of the party to whom they were granted;

124. Minor. If one otherwise entitled as a * Reversed on another point, 10 Barb., 659; 6 N. legatee be a minor. letters are to be granted to Y. (2 Seld.), 443.

a guardian. 2 Rev. Stat., 75, § 33.