Holmes v. Smith

By the Court. We think that the intention of the legislature must have.been that there should, as far as possible, always be some person competent to act as surrogate. The words “ when there is no legal officer authorized to perform,” etc., may, without force, be construed “when there is no officer legally authorized to perform,” etc. It is not desirable in order to defeat the administration of justice to suppose that “legal”'was a mistake for “local.”

The order should be reversed, and the district attorney ordered to proceed in the matter with costs to the appellants, payable out of the estate.

Ordered accordingly