McGregor v. McGregor. he would, moreover, have been a citizen of this State. The provision of the federal constitution which declares that the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States, precludes the objection of alienage from being set up in any State against a person born in any of the United States, and constitutes all such persons, for all legal purposes, citizens of each State in the federal Union. Art. 4, § 2; Lemmon v. People, 20 N. Y. 562, 607. They are not, it is true, resident citizens of any State except the one in which they are domiciled, and cannot claim any rights belonging peculiarly to residents, out of their own State. But the statutory disability attaches only to such as are both aliens and non-residents. There is no reason to suppose that the term alien was used in this statute in any other than its legal sense. That is at the same time its popular meaning, and the word when used simply and without any qualifying language cannot have any other signification than the one which the law and common parlance affix to it. This alleged ground of disqualification cannot, therefore, be sustained. The fifth class of persons declared by the statute to be incompetent to serve as executors are those who, upon proof, shall be adjudged incompetent, by the surrogate, to execute the duties of such trust, by reason of drunkenness, improvidence or want of understanding. This language, doubtless, confers upon the surrogate a broad jurisdiction, as the nature of the subject eminently required. Taken in connection with the other classes of disqualified persons mentioned in the same section, it assumes that there are those who are generally competent to make contracts, and who are neither idiots, lunatics, or persons of unsound mind, in the eye of the law, to whom it would yet be unfit to entrust the administration of the estate of a deceased person, though they should be so selected for that purpose by the testator. The defects alleged in the present case are improvidence and want of understanding. The surrogate and the supreme court have not been able to find, in the proof which has been taken, sufficient evidence to enable them to pronounce against the respondent in either of these respects. Upon a careful reading of the printed testimony, I have come to the same conclusion. The result of the evidence McGregor v. McGregor. seems to be that the respondent is a competent man of business, of at least the average grade of intelligence. If he had been habitually or generally neglectful of his pecuniary and business affairs, or extravagant or wasteful, to an extent to deserve the character of an improvident man, the fault would have been likely to show itself in the condition of his own estate and pecuniary interests. But the evidence does not show him to be embarrassed or pecuniarily insolvent. For aught that appears, he has a competent property, and is ordinarily prudent and cautious in its management. If, therefore, he shall prove faithless in the administration of the estate of his deceased father, i will not be from inherent defects of character of the nature referred to, but from some other and probably less excusable faults of which the statute did not take notice. The evidence certainly does disclose defects of temper which have sometimes exhibited themselves in a marked degree. It appears that the will of the deceased, which has been admitted to probate, was contested before the surrogate on the allegation that it had been revoked or superseded by a later testamentary disposition. This later will was propounded by one Buell, who took valuable interests under it, and with whom the respondent acted in concert in the situation. But it was pronounced against by the surrogate, and the earlier will admitted to probate, and the determination was finally affirmed in this court. The respondent's brother, Duncan McGregor, the present appellant, presented the first will, and was the principal party on that side of the controversy. There was another litigation to which the respondent was a party, which involved the title to a tract of land in Iowa claimed by him, and upon which a town had been built, in which his brother, the present appellant, was united in feeling and action with the other party to the controversy. These several lawsuits gave rise to a very angry state of feeling on the part of the respondent toward the appellant; and the only portions of evidence in the present case which materially inculpate the former, consist in a and intemperate expressions respecting his brother and other persons whom he assumed to be connected with him in these controversies. According to his testimony he repeatedly accused them of perjury, threatened to have them convicted and sent to the State McGregor v. McGregor. prison, and was, on some occasions, so much excited in manner and language that persons who heard him thought him scarcely in his right mind, and some even believed him temporarily insane. I perceive no justification or even palliation for this angry and revengeful state of feeling on his part. If an illregulated temper, and lack of self-control, and the resort to abusive language toward a near relative, who was to be associated with him in the trust, were among the disqualifying causes, I should have no hesitation in declaring the respondent unfit for the office of executor. But such grave faults have no natural relation to the qualities of prudence or imprudence; nor do they denote a want of understanding in the sense of the statute. They may render him a disagreeable associate for the respondent, and make the transaction of business between them unpleasant and annoying; but the law does not contemplate the setting aside of an executor named by the testator for such reasons. The selection of executors is not committed to the surrogate's court. The testator is allowed to appoint such persons as he may see fit, provided they do not fall within the classes of incompetent persons mentioned in the statute. The evidence of intemperate expressions and conduct on the part of the respondent falls very far short of making a case of lunacy or monomania, either permanent or temporary, as respects the respondent. The statute clearly contemplates that one named as executor may receive letters testamentary though he be not a resident of the State. The provision is that the letters shall be withheld from a non-resident until he shall execute such bonds, with surety, as is required of administrators. 2 R. S. 70, § 7. It may chance that the respondent had conveyed away, without consideration, his interest in the estate of the deceased, as legatee and devisee, to his kinsman Buell; but I do not see that this circumstance has any bearing upon the questions involved in this appeal. It is not necessary that an executor should take an interest under the will, and the alienation of an interest actually given is not, therefore, a disqualification. If it should be said that it indicates a disposition improperly to favor Buell, who had failed in establishing the later testamentary disposition which was rejected, it does not furnish a stronger motive McIntyre v. Warren. for an unjust or partial administration for the benefit of that interest that he would have had if he had continued to hold it himself. I conclude that no error was committed in granting letters to the respondent, and am of opinion that the order appealed from should be affirmed. All the judges concurred, except H. R. SELDEN, J., who did not vote. Order affirmed, with costs. MCINTYRE v. WARREN. December, 1866. Doubtful, or even probable testimony, is not sufficient to open a long settled account, in the absence of any proof of fraud or undue influence. Upon this principle, the testimony of a witness that errors in the account were admitted by the defendant, on an occasion many years before the trial and many years after the occurrence of the errors in question, is not sufficient, if it does not appear that any memorandum of the admissions was ever made by the witness, and his recollection is not corroborated, and is not complete in regard to material points. The whole burden of proof is on the party seeking to open such an account. John McIntyre filed a bill in the late court of chancery against Halsey Rogers and Ephraim Newland, to open the accounts settled between the parties, as partners, at various times between December 20, 1830, and April 27, 1839. Pending the suit, all the parties died, and it was continued by Lucy McIntyre, executrix and plaintiff, against William H. Warren, the administrator of Rogers, and John B. Newland and others, executors of Newland. The bill alleged that in 1828, the original plaintiff and defendants entered into the lumber business in the county of of Saratoga, sharing equally in the losses and profits; that the keeping of the accounts was intrusted solely to Rogers, and they were kept by him in his own name; that, from time to time, McIntyre v. Warren. Rogers exhibited statements to which the plaintiff was induced to assent in writing, and that the plaintiff has recently discovered that all of the said statements are erroneous; that the first of such settlements took place on December 20, 1830, when the plaintiff exhibited two papers, marked No. 1 A and No. 1 B, which were signed by the plaintiff and Rogers, on the representation of Rogers that the same were correct; that the statement No. 1 A, erroneously charged to the plaintiff, as if received by him, the note of Southwick, Canon & Warren, at nine months, on sale of timber And Roswell Butler, draft on nine months, from 2nd of December, 1829, due September 2, 1830. And the note of Southwick, Canon & Warren on account of Butler, due 22nd of October, 1830, at nine months $4,770 00 4,000 00 865 02 500 00 And the note of Southwick, Canon & Warren on account of Butler, due 22nd of October, 1830 The plaintiff charged that said sums were, in fact, received by Rogers, and not by him. The complaint further alleged that the statement No. 1 B was erroneous, and that the plaintiff was therein credited with the following items: "Account of money due from Bailes & Roberts. $3,023 00 Jndgment against Peck 1,550 95" which items the plaintiff alleges were afterward collected and received by said Rogers, and that the plaintiff was entitled to one-third part thereof. The plaintiff alleged that, upon the statement marked No. 1 B. was and is a memorandum in the handwriting of Rogers, in these words: "Due John McIntyre, for advances on white oak, sent to Canada in the years 1829 and 1830, four thousand four hundred and fifty-one dollars and thirty cents," which statement the plaintiff admits to be correct, and avers that the same has never been paid to him. The plaintiff further alleged that, on March 20, 1831, another settlement was required by him, which he alleges to be erroneous, and that he is therein charged with the amount of a note of Seaman & Barker, for one hundred and thirty-six dollars |