In re Awarding Letters of Administration on the Estate of Haley

2 Gibb. Surr. 291, 21 Misc. 777, 49 N.Y.S. 397

• Court: New York Surrogate's Court
• Decided: November 15, 1897
• Status: Published

Opinion

Marcus, S.

John Haley left a widow and four sets of children, nine in all, Tbe only adults are descendants of tbe first wife, and range in age from 22 to 40 years. Tbe petitioning widow is the fourth wife of deceased, and is 27 years of age. Tbe only adult son petitions this court for letters of administration, to be issued to himself. Tbe widow likewise asks that she be appointed administratrix, and that one of her counsel be joined with her, as well as the stepson, as a representative of tbe family. The widow, further, consents to waive her right to administration providing her counsel be joined with the son of the deceased, as coadministrator of the estate. The fairness of this offer seems 'to appeal at once for a quick disposition of the question, aside of the statutory direction, but for the condition, that the widow is unable to read or write the English language. Her illiteracy is further burdened by a density that is hard to ‘Comprehend, since she is unable even to count money. The discretion of the surrogate is, therefore, asked to be exercised against the widow, and in favor of the son, under subdivision 5 of section 2612 of the Code.

From a careful examination of tbe cases in this State, I have boon unable to find any precedent. No reported cases throw any light upon the conditions existing when this discretion has b_en exorcised, if ever at all. The principle is-clear, that the policy of the law is to grant administration directly to those most 'interested in the estate. The amount of interest is assumed to make such person conserve his own advantage by a studious .attention to the duties enjoined. Apart from the statutory regulations, which determine what persons are entitled to administration, and which of course must be observed in appointing administrators, the discretion vested in probato courts is governed by the principle that administration should be committed to those who are the ultimate beneficiaries — those to whom the property would go after administration. The statute makes it the dxity of the surrogate to- issue letters to persons in the order named therein, if they are by law competent to serve. The statute further’provides who shoidd be deemed competent, and the general rule seems to' be that every person is competent unless declared to be incompetent by statute, and that no new causes of disqualification may be added to those prescribed by the statute. The statute, which directs administration in cases of intestacy to be granted to relatives of the deceased who succeed to the personal property in the order riamed therein, carries out the rule stated. There is, however, an exception. When a person, otherwise entitled to letters, is unable to read or write the English language, the surrogate, in his discretion, may refuse to grant such letters. It has been urged upon the part of the widow that the statutory priority must be recognized, unless there be also a statutory disqualification, and that letters should only be withheld by the court where the applicant is disqualified by the statute, and the disqualification must appear to bei something which would put in jeopardy the proper administration of the estate.: I am mindful that the exercise of discretion in' favor of the petitioning son, and against the •widow, invades a right, long recognized by the law, yet, if statutory priority alone slronld control, and tbe statutory disqualification be necessarily shown, tbe rules would then be fixed, letters be granted to tbe widow, as a matter of right, and there would be no discretion left to be exercised by the surrogate. I am not prepared to say that the widow, petitioner, would be a positive danger’, nor can I satisfy myself that she (would be. of any assistance or purpose in the winding up of this estate. While it is true no new disqualification can be added to those specified in the statute, yet any person applying for letters, deficient in capacity to manage or ability to perform duties necessarily incumbent upon them, lacking the requisite understanding to be directed intelligently — when, a person is so evidently unsuitable, unable to read or write, it seems a reasonable exercise of discretion to refuse the granting of letters.

I have nothing to do with the feeling existing in this family. A proper bond will protect the interests of all concerned.

The petition of Bridget. McGraw Haley is, therefore, denied, and letters of administration may be granted to John J. TIaley, upon his filing a bond, to be approved by this court, in the sum. of $20,000.

Decreed accordingly.