Commentaries on American Law

Revolution, the power of granting letters testamentary and letters of administration resided in New York, in the colonial governor, as judge of the prerogative court, or court of probates of the colony. It was afterwards vested in the court of probates, consisting of a single judge, and so continued until 1787, when surrogates were authorized to grant letters testamentary and letters of administration of the estates of persons dying within their respective counties. If the person died out

of the state, or within the state, not being an inhabitant *410 thereof, the granting of administration was still reserved to the court of probates. (a) This practice continued until the act of March 21st, 1823, (b) when the court of probates was abolished, and all the original powers of that court were transferred to the surrogates; and each surrogate has now jurisdiction, exclusive of every other surrogate, within his county, when the testator or intestate was at his death an inhabitant of the county, in whatever place he may have died; or not being an

and in partition and dower, and it may authorize guardians to sell real estate to pay debts, and support infants, lunatics, &c. It may command jury trials in proper cases. The probate jurisdiction is plenary and highly important, and the statute conferring the powers is very provisional, and seems to be well digested. Revised Statutes of Indiana, 1838, pp. 172, 459. A court of probates in Mississippi, is established in each county, and has the like enlarged and discretionary jurisdiction, in all matters of wills and of administration, and of sales and distribution of the estates of decedents; and, as far as the jurisdiction extends, it is exclusive, and has powers as ample as a court of chancery. 2 Smedes & Marshall, 326, 330, 333. Farve v. Graves, 4 id. 707. The act in Missouri, concerning executors and administrators, is comprehensive and their powers and duties are well defined. The jurisdiction resides in the county courts. Revised Statutes of Missouri, 1835, p. 40. So in Kentucky and North Carolina, the county courts have exclusive jurisdiction to establish wills of real and personal estates. Hunt v. Hamilton, 9 Dana's Rep. 91. 1 N. C. Revised Statutes, 1837, pp. 620, 621. The Revised Statutes of each state, and especially where the revisions have been recent, contain a special detail of the jurisdiction and power of probate courts. We can only allude occasionally and by way of illustration, to the local statutes. The law of Maryland on Statutory Testamentary Law is collected by Judge Dorsey, and the volume is enriched by a reference to the decisions of the courts on the subject. In New Jersey, the governor, by the constitution, until 1844, was ex offi cio the ordinary as well as the chancellor of the state, and he consequently had jurisdiction to take proof of wills and to grant letters testamentary, and letters of administration. But by the constitution of 1844, the chancellor is declared to be the ordinary or surrogate-general and judge of the prerogative court.

(a) L. N. Y. sess. 1, ch. 12, and sess. 10, ch. 38. Goodrich v. Pendleton, 4 Johns. Ch. Rep. 552.

inhabitant of the state, died in the county, leaving assets therein; or, not being an inhabitant of the state, died abroad, leaving assets in the county of the surrogate; or not being an inhabitant of the state, and dying out of it, assets of such testator or intestate should thereafter come into the county; or when no jurisdiction is gained in either of the above cases, real estate, devised by the testator, is situated in the county. (a) The first judge of the county acts in cases in which the surrogate is disqualified to act; and the county treasurer in each county acts as a public administrator in special cases. There is likewise a public administrator in the city of New York, with enlarged jurisdiction in special cases of intestates' estates. He is authorized to act as public administrator in cases where there are effects in the city, of persons dying intestate, and leaving no widow or next of kin competent and willing to administer. (b) 1

Administration is directed, by the New York Revised Statutes, to be granted to the husband on the wife's personal 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 * 411 kin who would be entitled to a share in *the distribution of the estate. (c) Under the English law, (and the law

sec. 1.

(a) N. Y. Revised Statutes, vol. ii. p. 73, sec. 23. N. Y. Act, 60th sess. ch. 460, In England, generally speaking, all ecclesiastical testamentary jurisdictions are limited in their authority to property locally situated within their district. Crosley v. Archdeacon of Sudbury, 3 Hagg. E. R. 199. In Tennessee, letters of administration granted not in the county of the decedent's residence and domicil are void. Wilson v. Frazier, 2 Humphreys, 30.

(b) N. Y. R. S. vol. ii. p. 79. Ibid. vol. ii. pp. 117–133. By the act of April 20th, 1830, in amendment of the Revised Statutes, further provision is made for the case in which the first judge of the county cannot act as surrogate. The trust devolves on the district-attorney of the county, and eventually on the chancellor. In New Jersey, if the intestate leaves no relations to administer, the ordinary grants administration on due security to any proper applicant. R. S. N. J. 1847, p. 345.

1 The city is directly liable for a devastavit by the public administrator, and for the costs in a suit wantonly brought by him. Matthews v. The Mayor, &c., of New York, 1 Sandf. (Law) R, 132.

of New York, and it is presumed the law of the other states is the same,) (a) 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. (b) To guard against imposition or mistake in issuing letters of 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 administer, 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 issued to all such persons, and duly served or otherwise published. (c)

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. (d) If no creditor

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 kin 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. (a) N. Y. Revised Statutes, vol. ii. p. 74, sec. 28.

(b) Fawtry v. Fawtry, 1 Salk. Rep. 36. Anon. Str. Rep. 552. 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, 1836, and the New Jersey statute of 1795, Elmer's Dig. 165, leave it as in the English law.

(c) 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 administration is actually granted to another.2 M'Donnell v. Pendergast, 3 Hagg. 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.

(d) In North Carolina the greatest creditor is, in such case, entitled to the preference. Act, 1792.

1 See Sheldon v. Wright, 1 Seld. 497.

2 So in New York. Robertson v. McGeoch, 11 Paige's R. 640.

applies, then to any other person legally competent. (a) 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. (b) 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 the debts. (c) Under the English law, at least, until lately, if the husband

dies leaving the goods of the former wife unadministered, *412 the right of * administration de bonis non belongs to 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 Hole v. Dolman, in 1736, was an anomalous case, and established an exception to the 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. (d)

(a) The same general rules are prescribed in the Massachusetts Revised Statutes of 1836, and exist throughout this country.

(b) 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 person, except the public administrator in the city of New York. Ibid. p. 75, sec. 31.

(d) 1 Hagg. E. R. 341, in notes. 2 Ibid. 631. Suppl. 150, 165. The recent doctrine in Betts v. Kimpton, 2 B. & 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

1 See Randall v. Shrader, 17 Ala. 333.

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. (a) No person convicted of an infamous crime, or incapable by law of making a contract, nor a nonresident 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; 2 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 competent persons may be associated by the surrogate with an administrator. (b) 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. (c)

* If letters of administration should happen to have 413 been unduly granted, they may be revoked, 3 and administration may be granted upon condition, or for a limited time, or for a special purpose; as for the collection and preservation of

Hagg. E. R. 769, the more reasonable rule is at last adopted, that the administration on the estate of a deceased wife follows the interest, and on the husband's death goes to his representatives.

(a) 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.

(b) Ibid. vol. ii. p. 75, sec. 32, 34. Act of N. Y. April 20th, 1830.

1 But males who are minors and reside out of the state will not be preferred to adult females resident in the state. Wickwire v. Chapman, 15 Barb. 302.

2 See Coope v. Lowerre, 1 Barb. Ch. R. 45. A professional gambler is such a person. McMahon v. Harrison, 10 Barb. 659. 2 Seld. 443.

3 Owings v. Bates, 9 Gill, 463. See, also, Stoker v. Kendall, Busbee, L. 242. Cole v. Dial, 12 Texas, 100.

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