In Re the Administration of the Estate of Campbell

Chase, J. The right to administer upon the estate of an intestate has in this state always been conferred by statute upon persons interested in the estate. Priority of right is *316 based primarily upon nearness of relationship and extent of interest. Such statutes are in accordance with natural justice and they are also based upon the assumption that ties of marriage and consanguinity and the effect of personal interest will lead the persons enumerated in the statute in the order named to exercise care and attention in the" management of the estate. The present statute relating to those entitled to letters of administration (Code Civil Procedure, sec. 2660) provides: “ Administration in case of intestacy must be granted to the relatives of the deceased entitled to succeed to his personal property, who will accept the same, in the following order.” The order of priority is therein prescribed and so far as it applies in this case, the surviving brothers of the intestate are the first in priority. This section shows how those interested in the distribution of the estate are preferred to others by providing that when a person entitled is a minor, administration must be granted to his guardian in preference to creditors or other persons. “ If no relative, or guardian of a minor relative, will accept the same, the letters must be granted to the creditors of the deceased.” The statute gives priority to those entitled to administration as a matter of right. It cannot be withheld except for reasons stated in section 2661. The right is not affected by the fact that the persons so enumerated, or some of them, are non-residents of the state. (Matter of Page, 107 N. Y. 266; Libbey v. Mason, 112 N. Y. 525.) Prior to the provisions of the Code of Civil Procedure as enacted in 1880, the surrogate was required on an application for letters of administration to issue a citation to all persons having an equal or prior right to the petitioner to such letters even if such persons or some of them were non-residents of the state. The present section 2663 of the Code of Civil Procedure provides: “ Every person, being a resident of the state, who has a right to administration, prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents, or those *317 who have renounced, or to any or all other persons interested in the estate, whom he thinks proper to cite. * * This section of the Code, so far as it gives the surrogate a discretion in regard to issuing a citation to non-residents having an equal or prior right to the petitioner to such letters was new in 1880. The purpose of conferring such discretion Was to avoid delay in administration when in the judgment of the surrogate it is unnecessary. In Libbey v. Mason (supra) a daughter of an intestate presented to a surrogate a petition asking to be appointed administratrix of her mother’s estate. While the application was pending the late husband of the intestate, a non-resident of the state, appeared and presented his petition for appointment as administrator, claiming priority of right. The surrogate granted letters of administration to the daughter and denied the application of the husband. The order was affirmed • at the General Term, but reversed in this court. The court say: “ The court below has sustained the appointment of Mrs. Mason in reliance upon section 2662 (now 2663) of the Code. We have already twice decided that no repeal of the priority of right dictated by the Bevised Statutes was intended or effected by that section, and that such priority of right was not lost by the fact of residence in another state if the petitioner was a citizen of the United States. (In re Page, 107 N. Y. 266; In re Williams, 111 N. Y. 680.) * * * The plain inference and obvious meaning is that a non-residence excludes only when the claimant is not a citizen of the United States; but where that citizenship exists the non-residence is immaterial and has no effect upon the priority of right. * * .” The court then refers to the discretion vested in the surrogate to omit a citation to non-residents and further say: “Nevertheless a judicious surrogate, armed with this destructive discretion, will rarely shut out the prior right of an American citizen living in a sister state, because some time is essential to give it recognition and protection. But it is upon the final clause of the section that the argument for *318 repeal is mainly founded. That reads : Where it is not necessary to cite any person a decree, granting to the petitioner letters, may be made upon presentation of the petition.’ Doubtless this clause was only intended to mean that, where the applicant had the first and paramount right, and none existed prior or equal to his, the surrogate might act at once, because citations to any one would be needless. But this innocent meaning is carried beyond its purpose by the phraseology employed and has led to the logic that since it is not necessary to cite a non-resident whatever his priority of right the surrogate may disregard that right and it is thereby lost. That he may disregard it seems to be true; that it is thereby lost, or ceases to exist or has suffered a repeal does not at all follow. It remains unchanged. The remedy for its enforcement has been modified but the right itself has not been destroyed. The surrogate may act without a citation to the non-resident citizen and disregard his right because he is not present to assert it. Whether the letters so issued although regular under the Code would stand against an application for their revocation by the non-resident citizen having the prior right it is not necessary now to determine.” When a non-resident is entitled to administer the estate of an intestate as a matter of right, and he is without fault on his part the right cannot be taken away from him without notice. (Matter of Tyers, 41 Misc. Rep. 378.) If a surrogate exercising the discretion reposed in him by said section 2663 grants letters of administration to a person of inferior right without notice to a non-resident of superior right such appointment is regular so long as it remains unrevoked, but it is at all times subject to the right of the non-resident on proper application to an appointment superseding the first appointment providing such non-resident by laches or otherwise has not waived his right thereto. If the claim of the appellant should be sustained it might result in many instances in an effort to keep all knowledge of the death of a person dying without a will from non-resident relatives until letters of administration had been granted, or in an unseemly race to the surrogate’s office *319 and an exaggerated statement of conditions in ex parte proceedings to avoid notice being given to such non-residents. We think that as the right to administer upon the estate of an intestate is a vested right, that it was never intended that surrogates should be given the power in their discretion to wholly cut off such right without notice to .or acquiescence by the person so entitled to administer the estate. The order should be affirmed, with costs. Cullen, Ch. J., Gray, Vann, Werner and Willard Bartlett, JJ., concur; Hiscock, J., dissents. Order affirmed.