Eggleston, S.
Wilson Greene died intestate on or about the 30th day of April, T905," leaving him surviving no widow and his only heirs at law, one son, G. Maurice Greene, and two daughters, Alice B. Greene and Belle G. Meacham, all of full age.
The son, G. Maurice Greene, by his petition filed asks that he be appointed administrator of the estate of his father, which appointment is objected fc> upon the part of the two sisters, upon the ground of alleged improvidence and also upon the ground that the petitioner has been convicted of an infamous crime in United States 'Court, at Binghamton, N. V.
[52]*52The only witness called by the contestants, to support the allegations set forth in the objection was G. Maurice Greene, and it is from the evidence given by him that it is urged that he is shown to be disqualified and precluded from being appointed administrator of the estate. The contest has been strenuous and, to a certain extent, bitter, and shows a most unfortunate condition of feeling between the .brother and sisters in this estate.
Eor ten years or more last past the son has been doing busines, first in his own name and latterly' in the name of his father, and during many of those years has done an extended business in the way of dealing in produce, and at times has seemed to be unfortunate in his manner of doing business. First, starting out in his own name he made a failure and involved the father somewhat, and then the father, taking the business in his own name, paid the obligations, of the son and permitted the son to use his name in the doing of the business, and even in that respect losses have occurred which seemed to have been unfortunate to the estate of the deceased. The father, however, up to the time of his death, permitted the son to do business in this way, and the fact that he so permitted him to act ás his agent, using his name almost without limitation, seems to indicate in a measure, the confidence of the father in the ability of the son to carry on the same. Undoubtedly he was led' to do so by a desire upon his part to help the son in business and to enable him to build up a trade that would furnish him employment and an opportunity to make money for the support of himself and family, as there is nothing showing but that the relation of the father and son was of the most friendly character. The father, dying suddenly, left to his estate considerable property connected with this business, which requires the supervision and control of some person understanding the business to administer upon the estate with a view to closing it up and saving as much as possible.
[53]*53Were the discretionary power given, I would appoint as administrator of the estate some person outside of the family who has a knowledge of dealing in produce such as was handled by Mr. Greene, through his son, in his lifetime, but that discretion is not vested in the court and the appointment must be made as provided by statute. This appointment is demanded by the petitioner under section 2660 of the Code of" Civil Procedure, wherein it is provided “ If several persons-: of the same degree of kindred to the intestate are entitled to-administration they must be preferred in the following order :• First, men to women, etc.,” and the son claims this as an absolute right to himself as against his sisters. This right so givem to the son cannot be taken from him unless, as provided in section 2661 of the Code of Civil Procedure, he has been convicted of an infamous crime or unless he shall be adjudged by this court incompetent to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding. Thus it will be seen that the right asked for -by the petitioner is statutory and one of which he cannot be deprived unless he is brought within the restrictions in section 2661.
This statutory provision is a declaration and affirmation of' the "right which the common law gave to a son, and the withholding of letters of administration from such son who is entitled to priority under the statute, unless by some cause incapacitated, is never justified except in cases where disqualification is declared by the statute itself.
Mr. Redfield, in his work upon the practice of Surrogates’ ■Courts states: “ That the rules governing the competency of a person to be an administrator are, with a single exception hereinafter noted, the same as those in the case of an executor. With respect to letters of administration, the statute declares that such letters shall not be granted to a person convicted of an infamous crime; nor to anyone incapable by law of nfaking a contract; nor to a person not a citizen of the United States, [54]*54unless he is a resident of this State; nor to a person under twenty-one years of age; nor to a pezaon who is adjudged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence or want of understanding.” The exception referred to is that where dishonesty, when so adjudged by the surrogate, disqualifies a person for the office of executor, is not expressly stated to be a bar to a gz-ant of letters of administration, though by another section dishonesty'is made a ground for revoking such letters. The fact •that a man sought to obtain property from another by theft or fz’aud has been held not to be improvidence within the meaning of the statute, though no one can doubt that it is dishonest.
The standard of incompetency fixed by the written law can alone be applied in passing upon the qualifications of the applicant to whom that law has given priority. Hence, indebted-mess to the estate and personal interest in its administration are mot in themselves, nor are old age and physical infirmity, per se disqualifications for the office. The fact that a person having the right to a grant of letters claims any of the property alleged to belong to the estate is not a bar to such grant.
The exception made as to the appointment of an administrator differing from the appointment of an executor is noticeable wherein dishonesty is made a ground for refusing letters to an executor but is not made one of the statutory grounds for withholding letters to an administrator. It would seem reasonable that if there was any ground that might be urged with force against such an appointment, it would be the ground of dishonesty shown against the person seeking the appointment. However, it seems to be the theory of the law that the administrator can be tested and he, being required to give a bond, will protect the estate from loss, and that he is entitled to his appointment until he is shown to be dishonest when letters can be taken from him for cause shown; and the remarks of Mr. Redfield upon this subject point out the distinction made be[55]*55'tween the granting of letters to an executor and to. an administrator.
In the case of the appointment of an. executor it is usual to ■make such appointment without requiring the giving of a bond unless something arises in the nature of the case to require Ms giving security for the faithful performance of his official acts. So that in this case the petitioner is entitled to this appointment unless he is shown to forfeit his right by reason of disqualification upon the grounds stated in the statute, and the’ two grounds urged being the conviction of an infamous crime, ■and improvidence, it is only necessary to discuss those two questions in this case.
From -the evidence it appears that the petitioner was convicted recently -in United States Court, at Binghamton, 1ST.
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Eggleston, S.
Wilson Greene died intestate on or about the 30th day of April, T905," leaving him surviving no widow and his only heirs at law, one son, G. Maurice Greene, and two daughters, Alice B. Greene and Belle G. Meacham, all of full age.
The son, G. Maurice Greene, by his petition filed asks that he be appointed administrator of the estate of his father, which appointment is objected fc> upon the part of the two sisters, upon the ground of alleged improvidence and also upon the ground that the petitioner has been convicted of an infamous crime in United States 'Court, at Binghamton, N. V.
[52]*52The only witness called by the contestants, to support the allegations set forth in the objection was G. Maurice Greene, and it is from the evidence given by him that it is urged that he is shown to be disqualified and precluded from being appointed administrator of the estate. The contest has been strenuous and, to a certain extent, bitter, and shows a most unfortunate condition of feeling between the .brother and sisters in this estate.
Eor ten years or more last past the son has been doing busines, first in his own name and latterly' in the name of his father, and during many of those years has done an extended business in the way of dealing in produce, and at times has seemed to be unfortunate in his manner of doing business. First, starting out in his own name he made a failure and involved the father somewhat, and then the father, taking the business in his own name, paid the obligations, of the son and permitted the son to use his name in the doing of the business, and even in that respect losses have occurred which seemed to have been unfortunate to the estate of the deceased. The father, however, up to the time of his death, permitted the son to do business in this way, and the fact that he so permitted him to act ás his agent, using his name almost without limitation, seems to indicate in a measure, the confidence of the father in the ability of the son to carry on the same. Undoubtedly he was led' to do so by a desire upon his part to help the son in business and to enable him to build up a trade that would furnish him employment and an opportunity to make money for the support of himself and family, as there is nothing showing but that the relation of the father and son was of the most friendly character. The father, dying suddenly, left to his estate considerable property connected with this business, which requires the supervision and control of some person understanding the business to administer upon the estate with a view to closing it up and saving as much as possible.
[53]*53Were the discretionary power given, I would appoint as administrator of the estate some person outside of the family who has a knowledge of dealing in produce such as was handled by Mr. Greene, through his son, in his lifetime, but that discretion is not vested in the court and the appointment must be made as provided by statute. This appointment is demanded by the petitioner under section 2660 of the Code of" Civil Procedure, wherein it is provided “ If several persons-: of the same degree of kindred to the intestate are entitled to-administration they must be preferred in the following order :• First, men to women, etc.,” and the son claims this as an absolute right to himself as against his sisters. This right so givem to the son cannot be taken from him unless, as provided in section 2661 of the Code of Civil Procedure, he has been convicted of an infamous crime or unless he shall be adjudged by this court incompetent to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding. Thus it will be seen that the right asked for -by the petitioner is statutory and one of which he cannot be deprived unless he is brought within the restrictions in section 2661.
This statutory provision is a declaration and affirmation of' the "right which the common law gave to a son, and the withholding of letters of administration from such son who is entitled to priority under the statute, unless by some cause incapacitated, is never justified except in cases where disqualification is declared by the statute itself.
Mr. Redfield, in his work upon the practice of Surrogates’ ■Courts states: “ That the rules governing the competency of a person to be an administrator are, with a single exception hereinafter noted, the same as those in the case of an executor. With respect to letters of administration, the statute declares that such letters shall not be granted to a person convicted of an infamous crime; nor to anyone incapable by law of nfaking a contract; nor to a person not a citizen of the United States, [54]*54unless he is a resident of this State; nor to a person under twenty-one years of age; nor to a pezaon who is adjudged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence or want of understanding.” The exception referred to is that where dishonesty, when so adjudged by the surrogate, disqualifies a person for the office of executor, is not expressly stated to be a bar to a gz-ant of letters of administration, though by another section dishonesty'is made a ground for revoking such letters. The fact •that a man sought to obtain property from another by theft or fz’aud has been held not to be improvidence within the meaning of the statute, though no one can doubt that it is dishonest.
The standard of incompetency fixed by the written law can alone be applied in passing upon the qualifications of the applicant to whom that law has given priority. Hence, indebted-mess to the estate and personal interest in its administration are mot in themselves, nor are old age and physical infirmity, per se disqualifications for the office. The fact that a person having the right to a grant of letters claims any of the property alleged to belong to the estate is not a bar to such grant.
The exception made as to the appointment of an administrator differing from the appointment of an executor is noticeable wherein dishonesty is made a ground for refusing letters to an executor but is not made one of the statutory grounds for withholding letters to an administrator. It would seem reasonable that if there was any ground that might be urged with force against such an appointment, it would be the ground of dishonesty shown against the person seeking the appointment. However, it seems to be the theory of the law that the administrator can be tested and he, being required to give a bond, will protect the estate from loss, and that he is entitled to his appointment until he is shown to be dishonest when letters can be taken from him for cause shown; and the remarks of Mr. Redfield upon this subject point out the distinction made be[55]*55'tween the granting of letters to an executor and to. an administrator.
In the case of the appointment of an. executor it is usual to ■make such appointment without requiring the giving of a bond unless something arises in the nature of the case to require Ms giving security for the faithful performance of his official acts. So that in this case the petitioner is entitled to this appointment unless he is shown to forfeit his right by reason of disqualification upon the grounds stated in the statute, and the’ two grounds urged being the conviction of an infamous crime, ■and improvidence, it is only necessary to discuss those two questions in this case.
From -the evidence it appears that the petitioner was convicted recently -in United States Court, at Binghamton, 1ST. Y., of a misdemeanor and fined by the court fifty dollars, and an appeal was taken, the petitioner insisting that no crime was committed. The facts connected with the conviction of the petitioner and the conviction for the cause charged do not seem to me to be a conviction of infamous crime within the legal construction of the language of the statute. It could hardly be said that a person who had been convicted, upon indictment, of a violation of the Excise Law, that being a misdemeanor, was convicted of an infamous crime. The statute contemplates the conviction of some crime of a serious nature. Were not that so it would have left out the word infamous, and would have provided that a person who had been convicted of crime would be disqualified from being appointed administrator.
“ The signification of the term ‘ infamous crime,’ wherever that expression occurs in our statutes, is absolutely fixed * * * It is there declared that ‘ whenever the term infamous crime is used in any statute, it shall be construed as including every offense punishable with death, or by imprisonment in a State prison, and no other.’ ” It can hardly be said in this case that the petitioner has been convicted of an infamous crime. Further [56]*56than that the conviction was had in Federal court and not in a court of this State, and there is some force in saying that in order to subject a person to the crime stated in the statute that it should be upon a conviction had in the courts of this .State. This reasoning finds support in the case of O’Brien v. Ueubert,. 3 Dem. 156. I am satisfied that the objection urged against the petitioner as to his having been convicted of an infamous crime is not proven within the legal meaning and construction of the statute.
Has the petitioner been shown to be disqualified by' reason of improvidence ? The petitioner is a young man of about thirty-five years of age and for his father has carried on quite an extensive business by way of buying butter, cheese, eggs and farm-produce. .Some of the time that business has been successfully carried on and at other times proved to be a loss, and, upon the-whole, it cannot be termed a successful business career. Yet the father permitted it to go on during his lifetime up to the-time of his death, occasionally going to see his son, who lived-in a neighboring village, and may have been at fault himself in not fully superintending the business, but he seemed to have had confidence in the ability, honesty and integrity of his son to-run the business.
The son was engaged in a business of speculation, buying and selling on a rising and falling market. Well meaning and well disposed men ofttimes fail in business judgment. Losses have-occurred largely to the father by reason of the fact that sales upon credit were made to persons who failed in business and judgments have been obtained against those persons which belong to the estate. Of course, that might arise at times without great fault to the party giving the credit. It is one of the unfortunate transactions in doing business upon the market where prices are daily fluctuating.
In order to disqualify a person under the statute, the improvidence or want of understanding must amount to a lack of [57]*57intelligence. Just what is meant by the term improvidence as. used in the statute, that is, its legal interpretation, has received considerable attention at the hands of the court. In the case of Emerson v. Bowers, 14 N. Y. 455, Mr. Justice 'Comstock says:. “All departures in conduct from the principles of rectitude, including all abuses of trust, are unwise and inexpedient, and, therefore, in a certain sense, improvident, but they do not constitute the kind of improvidence which the Legislature had in view in these enactments. A very careful, shrewd and moneymaking person may be guilty of negligence or abuse in a fiduciary capacity, but such a person is not improvident in the sense of the statute. The words with which the term is associated, drunkenness and want of understanding, are of some importance in arriving at its true construction. The term evidently refers to habits of mind and conduct which become a part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question.”'
Speaking upon this subject in the case of Ooggshall v. Green, 9 Hun, 471, the court say: “ Moral guilt or delinquency is not a ground for excluding a person from receiving letters, unless he ' has been convicted of an infamous crime. Improvidence such-as to exclude a party from administration, is a want of ordinary care and forecast in the acquisition and preservation of property. And it has been held that vicious conduct, improper and dishonest acquisition of property, and even loose habits of business, did not constitute improvidence ’ within the meaning of the statute, nor the fact that the petitioner was indebted to the estate.”
In Coope v. Lowerre, 1 Barb. 'Oh. 45, the chancellor said: “ The fact that a man is dishonest, and seeks to obtain the possession of the property of others by theft, robbery or fraud, is not evidence of improvidence.” And in further commenting upon the subject the court says in that case: “ Taking what the respondent there stated to be true, he certainly was grossly [58]*58•negligent in the management of his property and affairs, and in the contracting of debts, by endorsing for strangers, or for men without visible means of payment. But, after all, I cannot bring my mind to the conclusion that he is improvident to such a degree as to render him incompetent to discharge the duty of an administrator.”
None of the authorities cited by the contestants’ counsel are repugnant to the views above expressed.
Neither do I think the fact that the petitioner purchased in his own name the cheese factories and conducted the same, as he did, sufficient ground to withhold the granting of letters to him. This evidently was done with the full knowledge of the father, and while it would have been better for the father and the son to have done business between themselves as strangers would do' business, having accountings from time to time, yet they did not seem to think it necessary so to do, and employed their own means and ways in transactions between themselves.
The giving of checks and the course pursued by the petitioner in the management of the property of the estate after the death of his father are subject to criticism. Sound judgment would have suggested the necessity of immediately taking steps to have had an administrator appointed. The giving of the checks by the petitioner was unwarranted and unlawful and the honoring of the same by the bank and payment thereof cannot be justified. But a want of understanding of the law in this respect is not in itself a fact which would preclude a person otherwise entitled to letters from the granting of them to him.
The administrator, when appointed, must give a bond conditioned for the faithful performance of his duties as such administrator. With the estate so protected a full accounting can be had. There is no question about the capability of the petitioner to close up the affairs of the estate and certainly under the required bond he will feel the necessity of so doing.
During the lifetime of the father he was considered by him [59]*59competent to transact the business in the father’s name, and, so far as the evidence shows, no criticism or objection ever was raised iipon his part of the manner in which the son did the business. All things being equal, he now has a better knowledge of the situation of the affairs of that business conducted in the name of his father than any other person and could best close, it up. With the taking of the oath that he will honestly and faithfully so do, and protecting the estate by an ample bond, as required by law, it seems to me that a case has not been made by which he can be deprived of the statutory right given to him to be appointed administrator.
An order may be entered that upon taking the required oath and giving a bond as such administrator in the sum of $18,000 letters of administration may be issued to him.
Decreed accordingly.