Estate of Moran, 25 N.Y.S. 702

Estate of Moran

25 N.Y.S. 702 | N.Y. Sur. Ct. | 1893

Fitzgerald, S.

The petitioner herein, who is a half brother of intestate, asks for letters of administration. A sister of the' whole blood objects to petitioner’s claim on the ground that she is entitled to letters under the provisions of the Code. In the enumeration of the order in which parties are entitled to letters of administration, the Code (§ 2660, subds. 5, 6), plainly *177and specifically gives brothers a preference over sisters. The general language contained in subdivision 8, which confers upon males of the same degree of kindred as females a prior right to letters over the latter, obviously could have no reference to the case of a preference between brothers and sisters, they having been previously provided for, unless such general language was used for the purpose of preserving such preference in just such a case as this. Whether such language was so used or not, the result would be the same. The statute says: “ If several persons of the same degree of kindred to the intestate are entitled to administration, they must be preferred in the following order: First, men to women; second, relatives of the whole blood to those of the half blood; third, unmarried women to married.” The language here used is as definite and explicit to indicate an order of preference between the classes which it enumerates, as is that in the previous part of the section to establish the preferences therein designated. It, therefore, follows that the preference of men to women conferred by subdivision 8, if here applicable, recognizes and reasserts the priority prescribed by subdivisions 5 and 6. I am of opinion, however, that the provision quoted has no application to this case, which is governed by subdivisions 5 and 6, but relates solely to cases where the persons are contained in the same classes of priority constituted by the other provisions of the section. This construction harmonizes the different provisions of the statute and removes any inconsistency that might seem to exist between the provisions giving brothers a preference over sisters and that giving a preference to the whole blood over the half blood, by allowing the order of priority-established in the previous part of the section to remain undisturbed, and limiting the application of the general language of the subsequent part in the manner above indicated..

Application granted.