In re the Estate of Lowenstein

1 Mills Surr. 364 | N.Y. Sur. Ct. | 1899

Varnum, S.

The Revised Statutes, as they stood a,t the time of the amendment of section 2660 of the Code of Civil Procedure, by chapter 686 of the Laws of 1893, authorized the issuing of letters of administration to relatives or kin of an intestate, although they were' not entitled to share in the distribution of his estate, and this in preference to the public administrator, where the application for the appointment was made in pursuance of the procedure prescribed in article 4, title 3, chapter 18, of the Code of Civil Procedure. 4 R. S. (8th ed.), pt. 2, chap. 6, tit. 2, art. 3, § 27; Butler v. Perrott, 1 Dem. 9; Lathrop v. Smith, 24 N. Y. 420; Matter of Brewster, 5 Dem. 261. In incorporating into section 2660 of the Code the provisions of the Revised Statutes referred to, a slight change was made in the language indicating the order in which the relatives or next of kin of an intestate are entitled to letters of administration upon his estate, and this, it is claimed, is evidence of an intention on the part of the Legislature to change the previous law :and to limit the issuance of letters under subdivision 8 of section 2660- to the kin of the decedent who have a present and immediate right to share in the distribution of his estate. A similar claim was made in Matter of Wilson, 92 Hun, 318, where it was sought to prevent the widow of -an intestate from obtaining letters of administration upon his estate, upon the ground that she was precluded by an agreement made with him from succeeding to or sharing in his personal property, and so, under the section of the Code under consideration, not entitled to letters of administration upon his estate. It was held that, assuming the effect of the agreement to- be as claimed, she was, nevertheless, entitled to the letters. The reasoning of the court and the effect of its decision show that it was considered that no alteration had been made in the law by the Code, and that Lathrop v. Smith, supra, is still effective as an authority upon the question now under consideration. See, also, Estate of Sophie Moehring, 24 Misc. 418; Sur. Decs. 1898, p. 402; Estate of Caroline Haug, 29 Misc. 36; Sur. Decs. 1899, p. 503. In the present ease the application is made by petition, under section 2662 of the Code of Civil Procedure to appoint the public administrator the administrator of the decedent without citing the uncles and aunts and other relatives of the intestate. These, although none of them is entitled to share in the intestate’s estate, are, in view of what I consider to be the effect of the present provisions of the law upon the subject, persons who, under subdivision 8 of said section 2660, have a right to the letters superior to that of the public administrator and should be cited. Code Civ. Pro., § 2663; Butler v. Perrott, supra.

Decreed accordingly.