Opinion
July Term, 1852
Albert Mathews, for appellant. N. Hill, Jun. for respondents.
This case depends upon the construction of the statute. (2 R.S. 75, § 32.) It reads as follows: "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 such "person resides within this state;] nor to any one who is under "twenty-one years of age; nor 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; "nor to any married woman; but," c. The surrogate judged the appellant to be competent to execute the duties of administrator, and ordered him to be appointed. The supreme court reversed that judgment, holding the appellant to be incompetent by reason of improvidence.
The first question is, whether the determination of the surrogate upon the question of incompetency is subject to review. We think it is; for otherwise his determination, not only under this section, and under subdivision 5 of section 3, page 69, and sections 18 to 22, of 2 R.S. 72, but also under section 34 of chapter 460 of the laws of 1837, would likewise be final. Under section 104, 2 R.S. 610, appeals from the orders, decrees and sentences of surrogates, are given in all cases, to the court of chancery, except where provision had already been made for an appeal to the circuit judge, and except upon orders concerning the admeasurement of dower.
The remaining question is, whether the surrogate rightly decided that the appellant was not incompetent, by reason of improvidence, to be administrator. All the evidence bearing upon the question was contained in a letter written by the appellant in Santa Fe, to his mother in New-York, and dated November 9, 1848. In that letter he says, "Never since I left my home, "have I wronged any one except in gambling. I am dealing a "very large game. I open my bank with $2500 every night. "In the last week I have won $2700."
The appellant's application for letters of administration on his mother's estate, was made on the 9th of July, 1850. Upon this evidence it is contended that there is no proof that the appellant was at the time of his application a professional gambler. We think however, with both the courts below, that upon the evidence we cannot but hold that he presumptively continues the same course of life which he was leading at Sante Fe. We are therefore called upon to consider whether the fact that a man is a professional gambler, is presumptive evidence of such improvidence as unfits him for the office of administrator or executor. The inquiry is limited to the question of presumption, for it is not necessary to say whether or not the evidence is conclusive, as in this case no contrary circumstances are disclosed.
We coincide entirely in the views expressed by the chancellor in Coope v. Lowerre, (1 Barb. Ch. Rep. 45,) that this statute does not at all look at moral delinquency, but regards merely the likelihood of the estate and effects of the intestate being lost or squandered by an improvident person. But so regarding the statute, we should obstinately close our eyes against the light of experience, if we failed to recognize the truth, that the pursuit of gambling is in a pecuniary sense the most hazardous of all pursuits. That it naturally engenders habits of recklessness and extravagance. That whether for the time successful or unsuccessful, it has but one common issue, and that utter ruin. We think therefore that the fact of a man being a gambler is prima facie evidence of such improvidence as rendered him incompetent to be an administrator; and that the facts shown in this case relating to the appellant's success in that pursuit, are not sufficient to rebut the presumption of incompetence.
The judgment of the supreme court must be affirmed.
RUGGLES, Ch. J., and GARDINER, JEWETT and EDMONDS, JS., concurred in the foregoing opinion.
WELLES, J. delivered an opinion in favor of affirming the judgment of the supreme court, on the ground that the surrogate erred in refusing leave to examine the appellant as a witness; but holding that the decision of the surrogate upon the question of the competency of the appellant to execute the duties of administrator, was not subject to review.
WATSON, J. did not hear the argument.
Judgment affirmed.