In the Estate of Julia O'Brien, deceased. there are others which have exact application, and all in all there is a very close analogy between the statute reviewed in Sims agt. Sims and the one which prescribes the qualifications of administrators. For these reasons I feel bound to hold that Daniel O'Brien's conviction in New Jersey of the crime of larceny does not necessarily disqualify him from becoming an administrator in New York. 2. There remains to be considered the question whether the surrogate has discretionary power, even though the New Jersey conviction does not as of course work a disqualification, to refuse, because of such conviction, the issuance to O'Brien of letters of administration. It has been repeatedly determined by the courts of this state that the withholding of letters from a person who, if not by some cause incapacitated, would be entitled in priority under the statute, is never justifiable save in cases where such person is declared to be disqualified by the statute itself (Coope agt. Lowerre, 1 Barb. Ch., 45; Emerson agt. Bowers, 14 N. Y., 449). The only statutory provision which can possibly be applicable to the case at bar is that which forbids the issuance of letters to one "who shall be adjudged by the surrogate incompetent to execute the duties of his trust by reason of improvidence." This presents the question whether one's conviction of larceny can ever of itself afford satisfactory evidence of his incompetency by reasons of improvidence, a question which has been answered more than once by our appellate tribunals. In the case of Coope agt. Lowerre, above cited, the chancellor said, in reviewing a decision of a former surrogate of this county: "No degree of legal or moral guilt or delinquency is sufficient to exclude a person from administration as next of kin in the cases of preference given by the statute, unless such person has been actually convicted of an infamous crime." (This exception, as I have already decided, only includes * * * In the Estate of Julia O'Brien, deceased. persons convicted in this state.) "The improvidence which the framers of the Revised Statutes had in contemplation as a ground of exclusion is that want of care or foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished in value in case administration thereof should be committed to such improvident person. The principle of exclusion in this part of the statute is based upon the well known fact that a man who is careless and improvident, or who is wanting in ordinary care and forecast in the acquisition and preservation of property for himself, cannot with safety be intrusted with the management and preservation of the property of others. The fact that a man is dishonest, and seeks to obtain the possession of the property of others by theft, robbery or fraud, is not evidence either of his providence or of his improvidence. The dishonest man, who preys upon the rights of others and deprives them of their property by unlawful means, may be, and frequently is, not only careless, but reckless in squandering the property which he has thus acquired. Or he may, on the other hand, preserve and hoard up his ill-gotten gains with all a miser's care." The decision of the court of appeals in McMahon agt. Harrison (6 N. Y., 443) is not in conflict with the decision just quoted. In the trial below, the surrogate had decided upon the authority of Coope agt. Lowerre (ante), that a professional gambler was not as such improvident within the meaning of the statutes declaring the qualifications of administrators. This judgment was subsequently reversed by the supreme court (McMahon agt. Harrison, 10 Barb., 659). That court announced its adherence to the proposition that, under the provisions of the statute, "vices and moral delinquency cannot of themselves disqualify a person to act as administrator;" but it decided, nevertheless, that a professional gambler, whose habitual occupation it was to put large sums of money at hazard upon games of chance, was, in the nature of things, an improvident person. Muser agt. Lissner This view was subsequently approved by the court of appeals (6 N. Y., 443). The pursuit of gambling was pronounced as in itself a token of improvidence, but the general doctrine of Coope agt. Lowerre was unhesitatingly approved (See, also, Emerson agt. Bowers, 14 N. Y., 440). In view of these decisions I cannot, upon the evidence before me, find that O'Brien is incompetent by reason of improvidence to become administrator of this estate. Letters may issue. SUPREME COURT. FREDERICK MUSER, appellant, agt. JULIUS LISSNER, respondent. Attachment-When should not be vacated because part of claim sued on was not due at time of commencement of action. Where it appears by the papers that the claim sued on was fraudulently contracted, the whole debt becomes due by operation of law, and it is error in such a case to vacate an attachment because the term of credit had not expired. First Department, General Term, November, 1884. APPEAL from an order vacating attachment. Blumenstiel & Hirsch, for appellant. Kurzman & Yeaman, for respondent. PER CURIAM.-The attachment issued in this action was predicated of the charge that the defendant had removed and disposed of his property with intent to defraud his creditors. In answer to this charge, upon motion to vacate the attachment, it was insisted by the defendant that a part of the claim involved was not due, and the learned justice and the court below declared that the motion should be granted, inasmuch McArthur agt. Commercial Fire Insurance Company. as it appeared that a considerable amount of the debt sued for was not due at the time of the commencement of the action. In response to this it was shown by the papers that the debt was fraudulently contracted, the defendant having obtained credit upon representation of solvency that turned out to be untrue. When that fact appeared the whole debt became due by operation of law. This is a familiar principle, which has been declared not only by this court but by the court of appeals in several cases. For these reasons we think the order appealed from should be reversed, with ten dollars costs and disbursements. CITY COURT OF NEW YORK. JOHN L. MCARTHUR agt. THE COMMERCIAL FIRE INSURANCE COMPANY. Preference on calendar — Right to Code Civil Procedure, sections 791-793. When an action is brought upon a judgment rendered in a chancery court in the state of Tennessee in an action on a policy of fire insurance on motion for a preference on the calendar: Held, that the action being against a corporation, and founded upon a judgment, which is an evidence of debt for the absolute payment of money, the right to a preference appears upon the face of the pleadings, and is absolute without any qualification or condition of any kind. It is a right given by statute, which no court can by rules or otherwise limit or abridge. General Term, October, 1884. Before MCADAMS, C. J., NEHRBAS and BROWNE, JJ. APPEAL from order made at special term denying an application for a preference on the trial calendar. C. W. Moulton and Miron Winslow, for appellant. G. A. Clement, for respondent. McArthur agt. Commercial Fire Insurance Company. BY THE COURT. The action is brought upon a judgment rendered in favor of the plaintiff and against the defendant, on the 30th day of May, 1884, in the chancery court of Davidson county, in the state of Tennessee, for $628.77, in an action on a policy of fire insurance issued by the defendant to the plaintiff and one W. N. Allen, as copartners. Issue was joined in that action, and after a trial on the merits the aforesaid recovery was had. It is said by the defendants that the chancery court of Davidson county is possessed of equitable jurisdiction only, and that the judgment is therefore not enforceable. But the complaint alleges that said court was and is a court of original jurisdiction in said county of Davidson and said state of Tennessee, empowered by the laws of said state to exercise general jurisdiction in actions of the kind and character mentioned, and their allegations are sufficient to admit proof of the facts alleged. The plaintiff moved for a preference on the calendar under section 791 of the Code, which, among other things, provides: "Civil actions are entitled to preference among themselves in the following order." Subdivision 8 of said section reads as follows: An action against a corporation founded upon a note or any other evidence of debt for the absolute payment of money. The present action is against a corporation, and is founded upon a judgment, which is an evidence of debt for the absolute payinent of money (See cases cited upon the appellant's brief). Section 793 provides that where a right to a preference depends upon facts which do not appear in the pleadings or other papers upon which a cause is to be tried or heard, the party desiring a preference must procure an order therefor from the court or the judge thereof upon notice to the adverse party. But where, as in this case, the right to the preference appears upon the face of the pleadings, the right is absolute without qualification or condition of any kind. It is a right |