« ForrigeFortsett »
sonal estate, and in other cases to the widow and next of kin, or to some one of them, if they, or any of them, will accept in the following order ; first, to the widow ; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters ; sixth, to the grandchildren ; seventh, to any other of the next of kin who would be entitled to a share in *the distribution of *411 the estate.a Under the English law, (and the law of New-York, and it is presumed, the law of the other states, is the same, the surrogate has the discretion to elect among the next of kin, any one in equal degree, in exclusion of the rest, and to grant to such person sole administration. So, under the English law, he may grant administration to the widow or next of kin, or to both jointly, at his discretion. To guard against imposition or mistake in issuing lettersof administration prematurely, the surrogate is required to have satisfactory proof, that the person of whose estate administration is claimed is dead, and died intestate; and when application is made to ad. minister, by any person not first entitled, there must be a written renunciation of the party having the prior right to administer, or a citation to show cause is to be first is. sued to all such persons, and duly served or otherwise published.
· N. Y. Revised Statutes, vol. ii. p. 74, sec. 27. 29. The rule in England is to grant administration to the husband on the wife's estate, and in other cases to the widow or next of kin, or both at discretion. The nearest of kia to the intestate has preference; and of persons in equal degree, the ordinary may take which he pleases. The nearness of kin is computed according to the civil law. 2 Blacks. Com. 504.
b N. Y Revised Statutes, vol. ii. p. 74. sec. 28.
ci Salk. Rep. 37. Fawtry v. Fawtry, Str. Rep. 552. Anon. Case of Williams, 3 Hagg. E. R. 217. The N. Y. Revised Statutes, vol. ii. p. 74, sec. 27. seems to have destroyed this discretion. But the Massachusetts Revised Statutes, 1835, and the New Jersey Statutes of 1795, Elmer's Dig. 165, leave it as in the English law.
d N. Y. Revised Laws, vol. ii. p. 74. sec. 26. Ibid. p. 76. sec. 35, 36. In England, an executor who has renounced, may retract before administratiou is actually granted to another. M'Donnell v. Pendergast, 3 Hagg.
According to the provision in the New York Revised Statutes, if none of the relatives, or guardians of infant relatives, (for the guardians of minors who are entitled may administer for them,) will accept the administration, then it is to be given to the creditors of the deceased ; and the creditor first applying, if otherwise competent, is to be preferred. If no creditor applies, then to any other person legally competent.b In the city of New York, the public administrator has preference after the next of kin; and in the other counties, the county treasurer has preference next after creditors. In the case of a married woman dying intestate, the husband is entitled to administration, in preference to any other person; and he is liable as administrator for the debts of his wife, only to the extent of the assets received by him. If he does not administer on her estate, he is presumed to have assets, and is liable for her debts.d Under the English law, at least, until lately, if the husband dies leaving
the goods of the former wife unadministered, the *412 right of *administration de bonis non belongs to
E. R. 212. And in New York, the surrogate may, with the consent of the person entitled, join one or more competent persons with him in the administration. When administration is granted to two or more persons, it being an entire thing, if one dies, the entire authority remains with the survivors, the same as in the case of executors. Lewis v. Brooks, 6 Yerger’s Tenn. Rep. 167.
• In North Carolina, the greatest creditor is, in such case, entitled to the preference. Act, 1792.
• The same general rules are prescribed in the Massachusetts Revised Statutes of 1835, and exist throughout this country.
· N. Y. Revised Statutes, vol. ii. p. 74. sec. 27. Where persons not inhabitants of the state of New York die, leaving assets in the state, if no application for letters of administration be made by a relative entitled thereto, and legally competent, and letters testamentary or of administration have been granted by competent authority in any other state, the person so appointed, on producing such letters, is entitled to letters of administration in preference to creditors, or any other persons, except the public administrator in the city of New York. Ibid. p. 75. sec. 31.
d N. Y. Revised Statutes, vol. ii. p. 71. sec. 27. Ibid. p. 75. sec. 29. 33 ; and vide supra, p. 135, 136. 31.
the next of kin of the wife; though the right of property belongs to the representatives of the husband. The principle of the English statute of 21 Hen. VIII. was to vest the administration de bonis non in the person who was next of kin at the time of the intestate's death, and who was possessed of the beneficial interest in the personal estate. The case of Hale v Doleman, in 1736, was an anomalous case, and established an exception to a general rule ; for the original administration to a feme covert was granted to her next of kin, in preference to the representative of the deceased husband, who survived her, and in whom the interest was vested. a
When there are several persons of the same degree of kindred to the intestate entitled to administration, they are preferred in the following order; first, males, to females ; second, relatives of the whole blood to those of the half blood ; third, unmarried, to married women; and when there are several persons equally entitled, the surrogate, in his discretion, may grant letters to one or more of them.b No person convicted of an infamous crime, or incapable by law of making a contract, nor a non-resident alien, or minor or feme covert, or person deemed incompetent by the surrogate by reason of drunkenness, improvidence, or want of understanding, is entitled to administer; but the husband is entitled to administer in the right and behalf of his wife : and with the consent, in writing, of the party entitled, one or more com
• 1 Hagg. E. R. 341. 2 Ibid. 631. App. 150. 165. The recent doctrine in Betts v. Kimpton, 2 B. df Adolphus, 273, is also, that administration de bonis non of the wife's choses in action left unadministered by the husband, goes to the next of kin of the wife; to be administered, however, for the benefit of the husband's representatives. See supra, 136. But in the still later case of Fielder v. Hanger, 3 Hagg. E. R. 769, the more reasonable rule is at last adopted that the administration on the estate of deceased wise follows the interest, and on the husband's death, goes to his representatives.
6 N. Y. Revised Statutes, vol. ii. p. 74. sec. 28. The statute law of New-Jersey of 1795, follows closely the English law on the subject of administration. Elmer's Digest, 165.
petent persons may be associated by the surrogate with an administrator.a The husband who administers on his wife's estate is now bound (though contrary to the English law, and the former law of New York) to give a bond, in the same manner as other administrators; yet he is not bound, in consequence of it, to distribute the estate after the debts are paid ; but he continues to enjoy it
according to the rules of the common law.b *413 *If letters of administration, should happen to
have been unduly granted, they may be revoked ; and administration may be granted upon condition, or for a limited time, or for a special purpose; as for the collection and preservation of the goods of the deceased; and it is the received doctrine, that all sales made in good faith, and all lawful acts done either by administrators before notice of a will, or by executors or administrators, who may be removed or superseded, or become incapable, shall remain valid, and not be impeached on any will appearing, or by any subsequent revocation or superseding of the authority of such executors or administrators.c
The nearness of kin, under the English law, is computed according to the civil law, which makes the intestate himself the terminus a quo, or point from whence the degrees are numbered ; and, therefore, the children and parents of the intestate are equally near, being all related to him in the first degree; but in this instance the surrogate has not his option between them, but must prefer the children.d And from the children and parents
a Ibid. vol. ii. p. 75, sec. 32. 34. Act of N. Y., April 20th, 1830.
o New-York Revised Statutes, vol. ii. sec. 29. Ibid. vol. ii. p. 98. sec. 79. See supra, p. 135.
Shep. Touch. by Preston, 464. N. Y. Revised Statutes, vol. ii. p. 76. sec. 38. Ibid. vol. ii. p. 79. sec. 46, 47. It is a general rule in the English law, that the grant of letters of administration relates back to the death of the intestate, so as to authorize the administrator to bring trover or trespass for goods of the intestate. Year Book, 36 H. 6, fo. 7. Long v. Hebb, Sty. 341. Sharpe v. Stallwood C. B. 7 Jurist. 492.
1 2 Vern. Rep. 125. arg. 2 Blacks. Com. 504.
the next degree embraces the brothers and grandparents, and so on in the same order. The law and course, in those states which follow the English law, must be to grant administration, first, to the husband or wife ; second, to the children, sons or daughters; third, to the parents, father or mother ; fourth, to the brothers or sisters of the whole blood; fifth, to the brothers or sisters of the half blood ; sixth, to the grandparents; seventh, to uncles, and aunts, and nephews, and nieces, who stand in equal degree ; eighth, to cousins. Grandmothers are preferred to aunts, as nearer of kin; for the grandmother stands in the second degree to the intestate, and the aunt in the third.b If none of the next of kin will accept, *the surrogate may exercise his discretion *414 whom to appoint; and he usually decrees it to the claimant who has the greatest interest in the effects of the intestate. If no one offers, he must then appoint a mere trustee ad colligendum, to collect and keep safe the effects of the intestate ; and this last special appointment gives no power to sell any part of the goods, not even perishable articles; nor can the surrogate confer upon him that power.d This very inconvenient want of pow. er is supplied by the New York Revised Statutes ;e and an administrator, ad colligendum, (who is called in the statute a collector) may, under the direction of the surrogate, sell perishable goods, after they shall have have been appraised.
(2.) of the power and duty of the administrator.
The administrator must enter into a bond before the judge of probate, (under whatever name the competent
Shep. Touch. by Proston, vol. ii. p. 453. Durant v. Prestwood, 1 Atk. Rep. 464.
• Blackborough v. Davis, 1 P. Wms. 41.
1 1 Rol. Abr. tit. Executor, ch. 1. Shep. Touch. by Preston, vol. ii. p. 488.
• Vol. ii. p. 76, sec. 39. Vol. II.