Peck v. Hooker. make reports of the cases argued and determined in said court, and prepare the same for publication; and it shall be his duty to insert after the syllabus of each case the date of the argument and the date of the decision." Section 333 requires that "the reports of the cases hereafter argued and determined in the Supreme Court of Errors, shall, when prepared by the reporter of judicial decisions and ready for publication, be published under the supervision of the comptroller, who shall cause the several volumes to be stereotyped and to be copy-righted in the name of the secretary for the benefit of the people of the state." Section 3709, fixing the salaries and fees of certain officers, provides for "the reporter of judicial decisions, three thousand dollars, with one thousand dollars additional thereto during the occupancy of the present reporter, and at the rate of twenty-five cents a page for any copy, to be paid by the party requiring it." If the plaintiff is entitled to a mandamus it is because there is something in the above quoted sections of the statute which makes it the duty of the reporter, upon request, to make for him, upon payment therefor, or permit him to make, copies of the written and unpublished opinions in his custody, that they may be published in advance of their publication by the state under the supervision of the comptroller. Do the statutes, either directly or by implication, impose any such duty upon the defendant? The state has seen fit to provide that the reports of the cases argued and determined in the Supreme Court of Errors shall, when prepared by the reporter and ready for publication, be published under the supervision of the comptroller. It has made it the reporter's duty to prepare the reports for publication. Will the courts of the state, which thus provides for controlling the publication of the reports of its court of last resort, compel the reporter to furnish for outside advance publication the unpublished opinions of that court, which the law requires him to prepare for publication Peck v. Hooker. in the manner by statute prescribed "for the benefit of the people of this state?" It is argued that the statute giving the reporter a fixed salary, "and at the rate of twenty-five cents a page for any copy, to be paid by the party requiring it," imposes upon him the official duty of furnishing copies upon demand and tender of payment for any purpose whatever, including advance outside publication. This is an attempt to extend a statute by implication beyond any reasonable limits. Indeed, it seems to us that in view of the clearly expressed design of the state to control the publication of its judicial reports, a reporter would be blameworthy who should knowingly aid in defeating that design by furnishing opinions to other parties for advance publication. It was not without good reasons that our statutes on this subject were passed. It is of public concern that the judicial reports should not be published until they are "prepared by the reporter and ready for publication." Until that time the opinion as well as the statement of the case and the syllabus, ought to be open for any correction that may be necessary for the proper understanding of the case. Until that time they cannot be relied on as necessarily expressing the final voice of the court and therefore as entitled to be published. At any rate, it cannot be the duty of the reporter, directly or indirectly, to contravene the policy of the state in this behalf-a policy which it is not claimed has ever prevented any one from obtaining a copy of any judicial opinion as soon as filed, who wanted it for his information or to gratify his curiosity, and which has helped to secure the accuracy of the published reports. We might have contented ourselves with simply referring to the case of Gould v. Banks, 53 Conn., 415, and holding that case as deciding this. For, if it is true, as contended by the plaintiff, that the Supreme Court of the United States, in Banks v. Manchester, 128 U. S. R., 244, have decided that no copyright can be had in judicial opinions, yet it still remains true that it is for the state to say when and in what Smith's Appeal from Probate. manner the decisions of its courts shall be published. But the present case is an interesting one. The effort to expedite the publication of judicial opinions is commendable. Absolute accuracy is however much more important than mere celerity, and it needs only an examination of our statutes and a careful consideration of the policy upon which they are founded, to show that the defendant was justified in refusing the demand of the plaintiff upon which the application for the writ is predicated. The demurrer was properly sustained and there is no error in the judgment. In this opinion the other judges concurred. ANN SMITH, GUARDIAN, AND OTHERS: APPEAL FROM PROBATE. New Haven and Fairfield Cos., Jan. T., 1892. CARPENTER, Seymour, TORRANCE, FENN and ROBINSON, Js. The rule of the common law as to who might be executors, was, that all persons might be who were mentally capable of executing the trust or were not specially disqualified. Where a testator appoints an executor out of the class recognized by the common law or by statute as capable, the probate court cannot reject the person so appointed except in cases where the law has specially so provided. By section 549 of Gen. Statutes, enacted in 1885, the statute authorizing courts of probate to appoint an administrator with the will annexed in the place of an executor named in the will, was changed by adding to the causes of rejection the following-" or be incapable to accept the trust." Held that a want of integrity or of business experience could not be regarded as a sufficient ground for rejecting a named executor under this clause of the statute. [Argued January 26th-decided February 29th, 1892.] APPEAL from a probate decree, refusing to approve the Smith's Appeal from Probate. appointment of an executor named in a will, and appointing an administrator with the will annexed; taken to the Superior Court in New Haven County. The court (Thayer, J.,) reversed the probate decree and the appellees appealed to this court. The case is fully stated in the opinion. G. E. Terry and L. F. Burpee, for the appellants (original appellees.) 1. Many of the early cases and many of the statements. in text-books are based upon the fact that, under the common law, any person except an idiot or lunatic was deemed capable of acting as executor. But legislation, both in England and the United States, has been constantly adding to the number of causes of disqualification, and limiting the number of those who may accept such trusts. The old doctrine that the testator had an absolute and sacred right to appoint a trustee of his own liking, has proved unsatisfactory. It is the modern opinion that the execution of the will is rather to be considered than the giving of a lucrative office to any person, and the interests of legatees and creditors are to be promoted rather than the gratification of the testator's caprice in selecting his executor. Accordingly, in New York and California, it has been provided that no person is competent to serve as executor who is under twentyone years of age, an alien, or who has been convicted of infamous crime or habitual drunkenness, or who is lacking in understanding or integrity. In Massachusetts the words. of the statute are, "where no executor shall be named, or otherwise incapable to discharge his trust, or evidently unsuitable therefor, the judge of probate may,” etc. In New Hampshire no person may be appointed who is "deemed incapable." Schouler's Exrs. & Admrs., § 33; 1 Woerner's Exrs. & Admrs., § 233. 2. In this state, previous to the revision of the probate laws in 1885, the court of probate had the power to grant administration with the will annexed only "upon the refusal of the executor to accept the trust or to give bonds." (Stat. 1875, p. 371, § 12.) The revision of 1885 provided Smith's Appeal from Probate. that, "if no executor be named in the will, or if the executor named shall have died, or shall refuse or be incapable to accept said trust, or to give bond, the court shall commit the administration," etc. This is the statute now in force. Gen. Stat., § 549. Manifestly this statute was intended to enlarge the discretionary power of the court of probate, as well as to add to the requirements upon those who apply to be made executors. The court may find an applicant incapable. Must that incapability arise from physical and mental disqualifications only, or may it be caused as well by want of common honesty? The answer to this question will be of great importance. It has not before, we believe, been considered by the courts of this state under this statute, but certain decisions of this court will, by analogy, furnish reasoning which will apply to this case. In Wilcox's Appeal from Probate, 54 Conn., 320, the subject was the appointment of certain persons as trustees of a testamentary trust and the refusal to appoint other persons. The will, so far as material, was as follows: "Should a vacancy occur of a trustee as above named, by death or otherwise, it is my will that a trustee to fill such vacancy shall be nominated to the judge of probate by at least one third of the devisees above named, and in like manner from time to time as such vacancy may occur, so that there shall be at all times at least two trustees during the continuance of said trust to have charge of said trust fund." This court decided that the testamentary mode of appointing such trustee was valid, and that it existed in this case to the exclusion of the statutory mode. It will be observed that this testamentary provision was clearly expressed, to the effect that the trustee nominated by one third of the devisees should be appointed. No restriction or condition concerning his mental or moral qualifications was made. Nevertheless this court decided that the probate court might reject the nominee for any cause impeaching his integrity or capacity. (See p. 325.) The word "incapable", has long been used in the statutes of this state relating to the appointment of conservators. Its meaning under this statute was indicated in Wickwire's Appeal |