In re the Letters of Administration of the Goods, Chattels & Credits of Zeph , 20 N.Y. St. Rep. 382 ( 1888 )

Ingalls, J.:

In November, 1S87, Edward Zeph, was an inhabitant of Schenectady county, in this State. He was indicted, tried and convicted of the crime of murder in the second degree, and sentenced to the State prison for life, and is now in prison under such sentence. Eidel Zeph, the only brother of such convicted person, applied to such surrogate for letters of administration upon the estate of such prisoner, which, were denied by the surrogate, upon the ground that he possessed no jurisdiction to grant such letters, as the said Edward Zeph was still living. We are convinced that the decision of the surrogate was correct. The contention of the counsel for the appellant is, that, by force of such conviction and judgment thereon, the said Edward Zeph became and is civilly dead, and that his estate became the subject of administration the same as though he were actually dead. We are satisfied that the provisions of the Code of Civil Procedure, from which surrogates derive their authority to grant letters of administration, have no application to a case of civil death, but apply only to cases of actual death. It will be perceived, by referring to section 2660 of the Code of Civil Procedure, and the following sections upon that subject, that whenever mention is made of the estate upon which administration may be granted, the word “decedent” is employed, as for instance, in said section 2660 the expression is found : “ and of the next of kin of the decedent.”

In section 2661 “that the decedent left no will.” The same term is to be found in section 2663 and section 2665. We think that the word “ decedent,” as thus employed in framing the statute, was intended by the law makers to be understood and applied in the usual and ordinary sense of the term. Webster defines the word “ decease ” as follows: “ To depart from this life; to die.” The word “ decedent ” is defined “ a deceased person.” There is nothing in the statute, which we discover, which in the slightest degree favors a construction that civil death was intended to be included as a ground for granting such administration; indeed, the entire proceedings in regard to administeimg the estates of deceased persons seem to negative the idea that civil death was intended to be included within the cases provided for by such statute. Such right to administration should not be extended by implication, doubtful construction, or judicial legislation. If it should be deemed safe and judicious to include civil death as a ground for granting such letters of administration, the legislature must furnish the remedy, and not the court. The effect of imprisonment for life upon the civil rights of the prisoner was considered in Avery v. Everett (36 Hun, 6); and upon appeal to the Court of Appeals the subject was elaborately discussed; and the decision of that court is to be found in 110 New York, 317. We understand such decisions to be, upon principle, adverse to tbe contention of tbe appellant’s counsel herein. It was suggested by such counsel upon the argument that the discussion of that question in the Court of Appeals should be regarded obiter. "We do not so regard it, as the question considered was involved in the case discussed by the members of the court, and concurred in generally by all the judges present, except Judge Earl, who delivered a dissenting opinion. Under such circumstances we must regard such question as within the determination of that court in that ease, and, so far as it applies upon the question under consideration in this case, is conclusive herein.

The order of the surrogate should be affirmed.

Learned, P. J., and Landon, J., concurred.

Order affirmed.