In re Wood's Estate

17 N.Y.S. 354 | N.Y. Sur. Ct. | 1891

Ransom, S.

Application to revoke letters of administration c. t. a. upon the ground that petitioner has a right to> the letters prior to that of'the respondent, and that they were issued to the latter without notice to the former. The question is, has petitioner such prior right ? Section 14, pt. 2, ch. 6, tit. 2, art. 1, 3 Rev. Stat. (6th ed.) p. 74, for which section 2643 of the Code of Civil Procedure was substituted, provided for the issuance of letters of administration c. t. a. first to legatees, “then to the widow and next of kin of the testator, or to any creditor of the testator, in the same manner and under the like regulations and restrictions as letters of administration in case of intestacy.” Among those restrictions and regulations is that which prefers males to females in case of intestacy, and is contained in section 28, art. 2, tit. 2, ch. 6, pt. 2, of the Revised Statutes. 3 Rev. St. (6th ed.) p. 78; 3 Rev. St. (8th ed.) p. 2552; Cottle v. Vanderheyden, 11 Abb. Pr. (N. S.) 19. This section is still in force. Section 14 of the Bevised Statutes was repealed by chapter 245 of the Laws of 1880, and section 2643 of the Code of Civil Procedure enacted in its stead. This section of the Code establishes the order of priority in which parties are entitled to letters of administration c. t. a., and makes no discrimination between males and females. The order is: First, to one or more of the residuary legatees who are qualified to act as administrators; second, if there is no such residuary legatee, or none who will accept, then to one or more of the principal or specific legatees so qualified, etc. Each of the parties to this proceeding is a legatee under subdivision 1, par. 2, of the will of the testator; both being recipients of the income of trusts, and the respondent being also entitled to share, in a certain event, in the funds held in trust for the petitioner and Mary Baldwin, respectively. In re Wood’s Estate, Surr. Dec. 1889 ; p. 120; In re Wood, 5 Dem. Sur. 348; In re Roux, Id. 523; Estate of Thompson, 33 Barb. 334, affirmed 28 How. Pr. 58. They are both legatees, within the second subdivision of section 2643, and each was at liberty to apply for letters without citing the other. Section 2644, Code Civ. Pro. Had he deemed it advisable, the surrogate could, in his discretion, have required everybody interested in the estate to be notified of the application. Section 2643, Id. He did not do so in the present case, and the petitioner can have no ground of complaint for the omission. If the petitioner had been a party to the proceeding in which the letters were issued, it would have been within the discretion of the court to grant them to either or both the parties, as the circumstances would warrant. Other things being equal, the court, in a case where there are opposing claims, would prefer the male to the female in issuing the letters. Application denied.

(Note.—Affirmed by General Term, 53 St. Rep. 804.)