2 Mills Surr. 69 | N.Y. Sur. Ct. | 1900
— This is an application on the part of Henry B. Seymour, father of decedent, for the issuance of letters of administration to him.
The decedent died February 6, 1890, intestate, leaving a widow and an infant child, his only heir-at-law and next of ldn. He also left him surviving his fáther, the petitioner, a mother and brother and sister. The widow and child died subsequent to decedent, the child first, and the personal property here will pass entirely to the legal representatives of the widow.
The‘petitioner, although not entitled to a distributive share in the estate of decedent, claims the right to administration under the language of section 2660 of the Code of Civil Procedure, and under the authority of the cases of Lathrop v.
Under the present language, such a construction would be impossible. The words do not contemplate futurity; they contemplate present interest. That it is the policy of the law to grant administration to the persons most interested seems to be
It is those who have a property interest, and not those interested from sentiment and blood relationship, that are referred to by the learned chief judge. The change in language of the statute was not due to codification or revision, but was an independent act of the Legislature. It may be well for a moment to look at the history of the statute.
After the decision in the Lathrop case, the Legislature, in an act generally amending the law in reference to the proceedings in Surrogate’s Courts (Laws of 1863, chap-. 362), amending section 27, title II, chapter 6, part 2, of the Revised Statutes, which related to the granting of letters of administration, by adding thereto the following words: “ This section shall not he construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin at the time of his decease.” In 1867 the law in relation to the powers and jurisdiction of Surrogate’s Courts was generally amended again, and section 27, relating to the issuance of letters of administration, was altered by providing for the issuance of letters of administration to the mother, after the father and before the brothers, which right was not given in the original statute, and the previous amendment of 1863, either by design or oversight, was omitted. The statute remained in this condition until after the law relating to Surrogates’ Courts was codified and made part of the Code of Civil Procedure. Section 2660, as it came from the codifiers, and as originally enacted, made no reference to the order in which administration should be granted, and the Repealing Act did not repeal the provisions of the Revised Statutes in that regard.
In view of the policy of the law as laid down in the Cottle case, I think the action of the Legislature sufficiently indicative of an intention to change the rule adopted in the Lathrop case. I am not unaware that this, conclusion is directly in conflict with the remarks of the court in the Matter of Wilson, above cited. An examination of that case, however, shows clearly that what was said by the court, upon the construction to be given to section 2660 of the Code, was obiter. That was a case where the widow of the intestate had entered into a separation agreement, whereby she released her right of dower and all interest in the real and personal property of the intestate, and the point was made that, under the agreement, she had waived her right to administer.
At the very outset, Justice MbewiN says, in his opinion: “ It is practically conceded that she is entitled unless she is disqualified by reason of the effect to be given to the provisions of an agreement of separation made between the respondent and her husband and a trustee, on the 14th of September, 1894.” There was, therefore, nothing for the court to have done in that case but to determine that the Surrogate’s Court had no authority to construe an agreement of separation, and no right to deny to the widow her statutory i*ight to letters of administration, without an express renunciation. She was entitled to a distributive share under the statute, and that is the condition which the Legislature had in mind. It never intended to provide for cases of private agreement. She was entitled to succeed at law to a part of her husband’s estate, and was, therefore, entitled to administer. The discussion by the court of the effect of section 2660 was not called for, and the
Application denied.