of New York, the Public Administrator shall have preference after the next of kin, over creditors and all other persons."

The eighth or last class, whose claim is prior to that of the Public Administrator, consists, as has already been stated, of "any other next of kin who would be entitled to share in the distribution of the estate."

The petitioner construes the words "would be" as equivalent to the word "is," and insists that the question whether, in any given case, a decedent's kinsman has a better right than a stranger to administer upon his estate, is solved by ascertaining whether, at that very time, such kinsman is entitled to succeed to such estate in whole or in part.

The respondent maintains, on the contrary, that the expression "would be" should be construed substantially as if the words "in any contingency" immediately followed, and that any person who is a relative of the decedent, and who, therefore, would be entitled to some distributive share in his estate, if all nearer kindred were deceased, is for that reason entitled to take letters of administration, unless they are solicited by or on behalf of some person more nearly related to his deceased kinsman, and having therefore pretensions superior to his own.

In other words, the respondent claims that the right of the Public Administrator is inferior to that of any relative of the decedent who asks for letters, while the petitioner contends that if, in the list of persons presently entitled to succeed to the estate, no one is found who can

BUTLER V. PERROTT.

and will administer, the Public Administrator has a right which is superior to that of any other person whomso

ever.

The statute in question is awkward in its phraseology, and it is not strange that there have been conflicting opinions as to which of these two interpretations is correct. Some of its language seems to demand one construction, and some the other.

In the well known case of the Public Administrator v. Watts (1 Paige, 382), decided in 1829, Chancellor Walworth declared that a person had no claim to administration unless he had an immediate interest in the estate as next of kin; that relationship nearer than that of any other person residing in the United States gave him no title whatever, if it fell short of that standard; and that if the next or nearest of kin was legally disqualified or refused to act, the claim of the Public Administrator became paramount. This was in some sense an obiter decision, for the Chancellor held that the person whose claim to letters he refused to recognize was not, in fact, the decedent's kinsman, either near or remote, being only distantly connected with him by marriage.

Surrogate Bradford passed upon the same question twenty years later (in 1849), holding, in the case of The Public Administrator v. Peters (1 Bradf., 100), that a relative of a decedent had no better claim than a stranger, unless his interest in the estate was such that, if division should be made at once, he would be entitled to a distributive share. This decision was overruled in 1861, by the Supreme Court, General Term, in the Fifth District, in the case of Lathrop v. Smith (35 Barb., 64). The contrary doctrine there maintained was soon afterward re

BUTLER V. PERROTT

asserted by the Court of Appeals (24 N. Y., 420), and it was distinctly declared that a present right to participate in the distribution of an estate was not, as it had formerly been held, an essential qualification for an administrator claiming as a relative of the decedent, but that the right of any person who was of the decedent's blood was superior to that of the Public Administrator.

I do not find that this doctrine has ever since been questioned. On the contrary, it is more authoritative now than when it was first announced. Within a few months after the decision of the Court of Appeals was published, the Legislature amended that provision of the Revised Statutes which is under discussion, by adding to it the following words: "This section shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin at the time of his decease" (sec. 3, chap. 362, Laws 1863). Four years later, the Legislature again amended this same section of the Revised Statutes, by restoring verbatim its original words and eliminating all those which had been inserted in 1863 (sec. 6, chap. 782, Laws 1867). This was a striking and unequivocal sanction by the Legislature of that construction which the provision in question had previously received from the Court of Appeals (People v. Green, 56 N. Y., 466). The petition for revocation of letters must therefore be denied.

Ordered accordingly.

HYATT V. LUNNIN.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-June, 1882.

HYATT V. LUNNIN.

In the matter of the probate of a paper propounded as the last will and testament of MARY ANN HYATT, deceased.

Where a decedent, at the time of the alleged execution of a will, is shown to have been aged, ill, physically feeble, and with impaired senses, though of unquestioned mental capacity, mere proof of the due observance of the formalities of subscription and publication will not justify a decree admitting the instrument propounded to probate. The possibility that even the falsest witness may stumble upon the truth renders it unsafe to infer, merely from discredited testimony, the existence of a state of facts diametrically opposed thereto.

The paper propounded as decedent's will was in writing. It appeared that, at the time of execution, she was nearly seventy years of age, very deaf, of impaired vision, able to read only print and to write only her name, debilitated and confined to her bed by a mortal disease; on the other hand, however, also, that she was of sound mind, complied with all the prescribed formalities of execution, and fully believed the instrument subscribed by her to contain the expression of her intentions with respect to the final disposition of her estate. It further appeared that one of the three subscribing witnesses, who was in her employ, was largely concerned in the preparation of the paper propounded, and enjoyed the confidence of decedent. This witness testified that, several weeks before decedent's death, he entered into and carried out a conspiracy with decedent's son, which resulted in the execution of the paper propounded; that he, after repeatedly urging upon her the importance of making a will, at length obtained from her suggestions for its contents, and an incomplete draft as an outline; whereupon he caused to be prepared a type-written draft-of which the paper propounded was a transcript—and which, through his intentional modification and distortion, did not express her disclosed testamentary purposes; that he took this draft to decedent, falsely pretending that it was in consonance with her expressed wishes, which pretentions he supported by misreading and partial suppression of its contents; that she received no information, save that which he himself gave, as to the

HYATT V. LUNNIN.

tenor of the paper which she mistakenly supposed to be her will. His character as a witness was shown to be worthless.

Held, that, laying aside this testimony as valueless, either for or against the alleged will, the condition and circumstances of decedent called for more than mere formal proof of execution, in order, as required by Code Civ. Pro., § 2622, to satisfy the Surrogate "of the genuineness of the will, and the validity of its execution," viz.: evidence that decedent's mind accompanied the will, and she was cognizant of its provi sions; and that, for the lack of such evidence, probate must be refused.

APPLICATION for the probate of decedent's will by John E. Lunnin, named as executor therein; opposed by Washington I. Hyatt, one of the next of kin of decedent. The facts appear sufficiently in the opinion.

THORNTON, EARLE & KIENDL, for proponent.

WALTER T. ELLIOTT, for contestant, Washington I. Hyatt.

LUCIUS MCADAM, for Edwin F. Hyatt.

THE SURROGATE.-Should the paper here propounded as the will of the decedent be admitted to probate? It is attested by three witnesses-Ira W. Beers, Warren A. James and George H. Poole. As to the incidents attending its execution, their statements vary in some particulars. It is established, however, to my satisfaction, that, at the time of signing this paper, the decedent was of sound and disposing mind; that she executed it in the presence of the three persons above named, and requested them to act as witnesses; that she published it as and for her last will and testament, firmly believing that it contained such final disposition of her estate as she desired to make, in view of her approaching death.

But there is a question of the utmost gravity, which presents itself at the very threshold of this inquiry. Did Mrs. Hyatt know the contents of this instrument? Does