
    New York County.
    Hon. D. G. ROLLINS, Surrogate.
    October, 1884.
    O’Brien v. Neubert. In the matter of the estate of Julia O’Brien, deceased.
    
    The withholding of letters of administration from one who, if not by some cause incapacitated, would be entitled in priority, under the statute, is never justifiable, except in cases where his disqualification is declared by the statute itself.
    Under 2 R. S., 75, § 32, providing that “No letters of administration shall be granted to a person convicted of an infamous crime.....nor to any person who shall be adjudged incompetent, by the Surrogate, to execute the duties of such trust, by reason of drunkenness, improvidence or want of understanding,”—Held,
    
    1. That, in order to bring a case within the statutory prohibition, the crime in question must be infamous, within the definition of the statutes of this State, viz. : one punishable with death, or by imprisonment in a State prison ; and that the conviction must have been had in a court of this State, for an offense against the laws thereof ;
    2. That a conviction, in a court of another state, of the crime of larceny, was not evidence of improvidence on the part of the convict, which would justify an adjudication, by the Surrogate, of incompetence to execute the duties of an administrator.
    Applications by Daniel O’Brien, a son, and by Joseph W. Neubert, á grandson of decedent, for letters of administration upon her estate. The facts appear sufficiently in the opinion.
    John E. McIntyre, for J. W. Neubert.
    
   The Surrogate.

Of the two persons who are applicants for letters of administration on this estate, one a son of decedent, the other a grandson, .the former is, of course, entitled in priority, unless he is for some cause disqualified. Evidence has been submitted tending to show that he has been convicted, in the state of New Jersey, of the crime of larceny; and it is insisted that, by such conviction, he has become incapacitated from receiving letters. The statute, which is claimed to create such disqualification, is in words following: “ No letters of adminis- N tration shall be granted to a person convicted of an infamous crime, nor to any one incapable by law of / making a contract,.....nor to any person who shall be adjudged incompetent by the Surrogate to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding” (§ 32, tit. 2, ch. 6, part 2, R. S.; 3 Banks, 7th ed., 2291).

Upon the facts here presented, two questions arise for determination :

First. Does one, by reason of his conviction of an offense against the laws of a foreign state, ever become “ a person convicted of an infamous crime,” within the meaning of the statute above quoted ?

The signification of the term “infamous crime,” wherever that expression occurs in our statutes, is absolutely fixed by § 31, ch. 1, tit. 7, part 4, R. S.; 3 Banks, 7th ed., 2539. 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 follows, therefore, that the first clause of § 31, which prescribes the qualifications of administrators, must be construed precisely as if it were thus worded: “No letters of administration shall be granted to a person convicted of a crime punishable with death, or by imprisonment in a State prison.” This translation of the language of the section makes very apparent the embarrassment that must attend any interpretation, whereby a conviction without this State would be accorded the same force and effect as a conviction within its limits. Surely, nobody would contend that the legislature had, by this enactment, meant to provide that a person should .be rendered absolutely incompetent to receive letters of administration merely by his conviction, in a foreign jurisdiction, of a crime there punishable by death or by imprisonment in a state prison. Such an interpretation would subject the qualifications of administrators here appointed to restrictions that might sometimes be oppressive and unjust. It is possible, of course, that acts which would here be deemed not simply innocent, but positively meritorious, might fall under such severe condemnation of the laws of some foreign power, as to be punishable, in that jurisdiction, by imprisonment or death. It is necessary, therefore, in order to bring foreign convictions within the purview of the statute under consideration, to interpret that statute as if it were couched in some such language as this: “ Letters of administration shall be granted to no person who has been convicted of a crime which would, if committed in this State, be here punishable by imprisonment or death.” Against any such interpretation, however, it can be urged, with great force, that it necessitates an unwarrantable introduction, into the statute, of words which form no part of it, and of an idea which its language does not fairly suggest. If the legislature had intended to give to foreign convictions the force and effect of convictions within the State, it would not have been difficult to make that intention clear and unequivocal. In the very Revision, of which the section now under consideration forms a part, a careful discrimination in this regard was made by the legislature, in defining criminal offenses, and prescribing punishment therefor. Section 8, tit. 7, ch. 1, part 4, R. S. (3 Banks, 7th ed., 2536), declares : “If any person convicted of any offense punishable by imprisonment in a State prison shall ..... subsequently be convicted of any offense ..... he shall be punished as follows,” etc. That this provision was deemed too narrow to include extra-territorial convicts is evidenced by the contemporaneous enactment of § 10 of the same title (3 Banks, 7th ed., 2537), which declares that “ every person who shall have been convicted, in any of the United States, or in any district or territory thereof, or in any foreign country, of an offense which, if committed within this State, would be punishable by the laws of this State by imprisonment in a State prison, shall, upon conviction for any subsequent offense committed within this State, be subject to the punishment herein prescribed upon subsequent convictions, in the same manner and to the same extent as if such first conviction had taken place in a court of this State.” Upon comparing § 8, above quoted, with that which prescribes the qualifications of administrators (bearing in mind the statutory definition of “infamous crime ”), it will appear that the two provisions are substantially identical. If, therefore, the legislature f had intended that any extra-territorial conviction should operate as a disqualification of an administrator, it is likely, it seems to me, that the provisions of the statute creating such disqualification would have been supplemented by some such enactment as § 10, X above quoted. Apart, therefore, from other grounds which impel me to the same conclusion, I should, for this cause alone, feel disposed to hold that the mere fact of conviction for crime can never, ipso facto, incapacitate a person from becoming an administrator, unless such conviction has been had in the courts of this State.

The correctness of this conclusion is emphasized by a consideration of the second clause of the statute which is here in question. That clause provides that letters of administration shall issue to no one “incapable by law of making a contract.” Manifestly, this incapacity is limited to incapacity under the laws in force within this State ; any other construction would be palpably absurd. By parity of reasoning, incapacity because of conviction for crime may well be regarded as limited to convictions under and by the laws of the State of New York.

The recent decision of the Court of Appeals, in the case of Sims v. Sims (75 N. Y., 466), subsequently approved in National Trust Co. v. Gleason (77 N. Y., 400), has an important bearing upon the question here at issue, if indeed it should not be regarded as decisive of it. The determination of those cases involved the interpretation of § 28, tit. 7, ch. 1, part 4, R S. (3 Banks, 6th ed., 994). “No person,” says that section, “ sentenced upon a conviction for felony shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he he pardoned,” etc. It was held by the Court of Appeals, Judge- Rapallo pronouncing its opinion, that the disqualification to testify, which’ was created by that statute, was restricted in its operations to persons convicted and sentenced under the laws of the State of NeAV York. Some of the reasons by which that conclusion is supported are not strictly applicable here, but there are others Avhich have exact application, and all in all there is a very close analogy, betAveen the statute reviewed in Sims v. Sims, and the one which prescribes the qualifications of administrators.

For these reasons, I feel bound to hold that Daniel O’Brien’s conviction, in New Jersey, of the crime of larceny does not necessarily disqualify him from becoming an administrator in Nbav York.

Second. There remains to be considered the question Avhether the Surrogate has discretionary poAver, even though the New Jersey conviction does not, as of course, work a disqualification, to refuse, because of such conviction, the issuance, to O’Brien, of letters of administration. It has been repeatedly determined by the courts of this State that the Avithholding of letters from a person who, if not by some cause incapacitated, Avould be entitled in priority under the statute, is never justifiable, save in cases Avhere such person is declared to be disqualified by the statute itself (Coope v. Lowerre, 1 Barb. Ch., 45; Emerson v. Bowers, 14 N. Y., 449).

The only statutory provision Avhich can possibly be ! applicable to the case at bar is that which forbids the ¡ issuance of letters to one “ who shall be adjudged, by ( the Surrogate, incompetent to execute the duties of y his trust, by reason of improvidence.” This presents the question whether one’s conviction of larceny can ever, of itself, afford satisfactory evidence of his incompetency by reason of improvidence,— a question which has been answered more than once by our appellate tribunals. In the case of Coope v. Lowerre (supra), the Chancellor said, in reviewing a decision of a former Surrogate of this county:

< “No degree of legal or moral guilt or delinquency is sufficient to exclude a person from administration as next of kin, in the cases of preference given by the statute, unless such person has been actually convicted of an infamous crime.”.....(This exception, as I have already decided, only includes persons convicted in this State). “ The improvidence which the framers of the Revised Statutes had in contem^plation, as a ground of exclusion, is that want of care or foresight in the management of property which would be likely to render the estate and effects unsafe, and liable to be lost or diminished in value, in case administration thereof should be committed to such improvident person. The principle of exclusion, in this part of the statute, is based upon the well known fact that a man who is careless and improvident, or who is wanting in ordinary care and forecast in the acquisition and preservation of property for himself, cannot with safety be entrusted with the management and preservation of the property of others. 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 either of his providence or improvidence. The dishonest man, who preys upon the rights of others, and deprives them of their property by unlawful means, may be, and frequently is, not only careless but reckless in squandering the property which he has thus acquired. Or he may, on the other hand, preserve and hoard up his ill-gotten gains with all a miser’s care.”

The decision of the Court of Appeals, in McMahon v. Harrison (6 N. Y., 443), is not in conflict with the decision just quoted. In the trial below, the Surrogate had- decided, upon the authority of Coope v. Lowerre (supra), that a professional gambler was not, as such, improvident, within the meaning of the statutes declaring the qualifications of administrators. This judgment was subsequently reversed by the Supreme Court (McMahon v. Harrison, 10 Barb., 659). That court announced its adherence to the proposition that, under the provisions of the statute, vices and moral delinquency can not, of themselves, disqualify a person to act as administrator; ” but it decided, nevertheless, that a professional gambler, w'hose habitual occupation it was to put large sums of money at hazard upon games of chance, was, in the nature of things, an improvident person.

This view was subsequently approved by the Court of Appeals (6 N. Y., 443). The pursuit of gambling was pronounced as, in itself, a token of improvidence, but the general doctrine of Coope v. Lowerre was unhesitatingly approved. See also Emerson v. Bowers (14 N. Y., 449).

In view of these decisions, I cannot, upon the evidence before me, find that O’Brien is incompetent, by reason of improvidence, to become administrator of this estate.

Letters mav issue.  