In re Nesmith

The appellant upon this appeal endeavors to raise the objection that the petition and the citation were defective in not calling upon the proper persons to show cause why the administration should not be granted. It does not appear from the record that any such objection was taken in the court below, and it is now too late to raise the same.

The only questions which seem to have been presented to the learned surrogate were that an administrator of Louis A. Nesmith had been appointed, and that he had completely administered the estate in good faith, and that there were no assets of the estate which the proposed administrator could take. These objections, if established, were undoubtedly a good answer to the application of the petitioner. But upon the papers such objections do not appear to have been sustained. An administrator appointed by the surrogate upon an affidavit that Louis A. Nesmith had died intestate cannot be said to have proceeded in good faith, as the phrase is intended tó be used in the statute, when he knew that Louis A. Nesmith had left á paper purporting to be liis last will and testament. It may be true that he supposed, and had good ground for supposing, that it was not so executed that it could be proved as a last will and testament. But he was not to be the judge of that. The *345paper should have been offered for probate, and upon notice to the parties interested the surrogate could have determined the question as to whether the alleged will had or had not been properly executed. If the administrator had ■done tliis, and the will had been rejected by the surrogate, and then letters of administration had been issued, he would certainly in the administration of the estate have acted in good faith. But as he undertook to determine the question of the validity of the execution of the will himself, and has made a mistake, as he appears to have been from the decree of the surrogate admitting the will to probate, he must take the consequences, and he may become liable to the legatees under the will for the estate which he has pretended to .administer. He cannot be said to have acted in good faith where he has ignored the existence of a valid will in regard to which he was perfectly informed. The objection that there were no assets belonging to the estate is not well taken, because the claim which the administrator with the will annexed may have against the person who has disposed of the estate of the testator is certainly an asset sufficient to justify the issuing of letters of administration. The order appealed from should therefore be affirmed, with $10 costs ■and disbursements.

Bartlett and Macomber, JJ., concur.