Tuohay v. Public Administrator

2 Dem. Sur. 412

• Court: New York Surrogate's Court
• Decided: March 15, 1884
• Status: Published

Opinion

The Surrogate.

Letters of administration on this estate were, in December, 1880, granted to the public administrator. A sister of decedent now asks that that officer be superseded, and that she herself be substituted in his place.

Several persons claiming as creditors oppose her application upon the ground that she has not sufficient capacity to manage the affairs of the estate. Section 32, tit. 2, ch 6., of the Revised Statutes (3 Banks, 7tJi ed., 2291), provides that “no letters of administration shall be granted.......to any person who shall be judged incompetent by the Surrogate to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding.”

It is also provided by chapter 782 of the laws of 1867 (§5), that “any Surrogate may in his discretion, refuse the application for letters testamentary, or letters of administration, of any person unable to read and write the English language” (3 Banks, 7th ed., 2293). That this petitioner cannot write is conceded. In view of all the evidence, I feel bound to deny her application. Aside from the grounds already suggested there is still another ground for such denial.

She has not been duly diligent in making Ler application. Sections 31 and 32 of tit. 6, ch. 6, part 2 of the Revised Statutes (3 Banks, 7th ed., 2314), as re-enacted by L. 1882, ch. 410, enumerate the cases in which, and the circumstances under which a public administrator’s authority may be superseded.

It would seem from the latter section that this may not be done in favor of a relative after the lapse of three months from the grant of letters.

Petition denied.