
    Coope vs. Lowerre.
    Under the provisions of the revised statutes, which prescribe the order in which administration, in cases of intestacy, shall be granted to the relatives of the deceased, if they, or any of them, will accept the same, and which provide that letters of administration shall not be granted to a person convicted of an infamous crime, nor to • any one incapable by law of making a contract, nor to a non-resident alien, nor to a minor, nor to any one who shall be adjudged incompetent, by the surrogate, to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding, nor to a married woman, the surrogate has no discretion to exclude a person, declared by the statute to be entitled to a preference, except for some of the causes specified in the statute.
    No degree of legal or moral guilt or delinquency is sufficient to exclude a person from the administration, as the next of kin, in the cases of preference given by the statute, unless such person has been actually convicted of an infamous crime.
    The conviction intended by the statute is upon an indictment or other criminal proceeding.
    The improvidence contemplated by' the statute, 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 of the intestate unsafe, and liable to be lost or diminished in value, by improvidence, in case administration thereof should be committed to the improvident person.
    Where a surrogate has a discretion, to select between two or more individuals of the same class, he may properly take into consideration moral fitness in making such selection.
    
      This was ah appeal from a decision of the' surrogate of the city and county of New-York, appointing the respondent administrator of' the estate of his deceased father. The intestate left three children surviving him, one daughter, the" wife of the appellant, and two sons; the respondent, and a younger son who was admitted to he incompetent. The appellant applied for letters of administration, on the estate, in rightof his wife. And upon the return of the citation, directed to the two son's, the respondent appeared and claimed the administration for" himself as being entitled to a preference under the provisions of the revised statutes. The appellant resisted his claim, on the ground that he was disqualified on account of his vices and his improvidence. Much testimony was taken for the purpose of showing that the respondent had been guilty of various offences, and that he was totally unworthy of the trust, on account of his imputed vicfes. But the principal evidence to show he was improvident arose from his own examination, upon an application for a discharge from his debts under the insolvent act. The surrogate decided that there was not sufficient evidence to show the respondent was improvident; and that as' he had not been convicted of an infamous crime, he was entitled to administer upon the estate in preference to the husband of his sister.
    
      Edward Sandford, for the appellant.
    
      Horace F. Clark, for the respondent.
   The Chancellor.

The revised statutes provide' that administration, in case of intestacy, shall be granted- to the relatives of the deceased who would be entitled to his personal estate, if they or any of them will accept the same, in the order specified in the statute. And I - think the surrogate has no discretion to exclude a person,' declared by the statute to be entitled td a preference, except for' the causes specified in the thirty-second section of the title of the revised statutes relative to granting letters testamentary and of administration. (2 R. S. 75.) That section provides that no letters of administration shall be granted to a person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to a person who is not a- citizen of the United States, unless he resides in this state, nor to a minor, nor to any one who shall be adjudged incompetent, by the" surrogate, to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding, nor to a married woman. But where a mar-, ried woman is entitled to administration the same may be granted to her husband in her right and behalf. No degree of legal or moral guilt or delinquency, therefore, is sufficient to exclude a person from the administration, as the next of kin, in the cases of preference given by the statute, unless such person has been actually convicted of an infamous crime. And conviction intended by the statute must fee upon an indictment, or other criminal' proceeding. Where the surrogate, however, has a discretion to select between two or more individuals of the same class, he may very properly take into consideration moral fitness in making such selection. Neither the recovery upon the note alleged to have been taken from the desk of the respondent’s father, nor the verdict in the suit for the seduction of the wife of his neighbor, nor even the decision of the jury upon his application for a discharge under the insolvent act, is sufficient to disqualify him to receive the grant of administration upon his father’s estate. Nor is the verdict, in the first or in the last of those cases, any evidence whatever of that kind of improvidence which the statute has declared a sufficient cause of exclusion from the administration of an estate. The improvidence which' the framers of the revised statutes had in contemplation, 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 of the intestate unsafe, and liable to cbe lost or diminished in value by improvidence, 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 of his improvidence. For 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 perfectly 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 evidence in this case tending to show the respondent’s dishonesty, and that he had been guilty of divers offences against the laws of society, but which could not throw any light upon the question of his providence or improvidence, should therefore have been excluded by the surrogate. Upon the same principle, the record of the large recovery against him in the crim. con. case, was improperly received as evidence before the surrogate; as it did not throw any light upon the question under consideration there. For that record only showed that, in a single case, the respondent had been found guilty of the deep moral offence of gratifying his criminal passions at the expense of a very heavy draft upon his purse. The case would have been very different if he had been guilty of frequent offences of this sort, and at considerable expense of property, from time to time. For that would have been evidence of great improvidence, as well as of deep degradation and guilt; and might have furnished reasonable grounds for believing that he was an unsafe and improper person to be entrusted with the administration of his father’s estate.

The only real and legitimate evidence of the respondent’s improvidence, in the acquisition and preservation of property, is that derived from his own examination when he was applying for the benefit of the insolvent act. And in reference to what he then said, it does not lie in his mouth, or that of his counsel, to say that the story he then told, in relation to the loss of his property, or as to the contracting óf the debts which were signed off by his supposed creditors, was a mere fiction. For it must be recollected he was examined upon oath, and that a deviation from the truth, upon that examination, involved the legal as well as the moral guilt of perjury. Taking what the respondent there- stated to be true, he certainly was grossly 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.

The decision of the surrogate must therefore be affirmed. But this being a new question, under the provisions of the revised statutes, and the examination of the respondent before the recorder furnishing very considerable evidence of improvidence, I do not think it is a proper case to charge the appellant with costs upon this appeal.  