Davies, J. It is provided by statute, that when any person shall apply for administration either with the will annexed, or in case of intestacy, and there shall be any other person having prior right to such administration, the applicant shall produce, prove and file with the surrogate, a written renunciation of the persons having such prior right.
If he fail to do so, before any such letters shall be granted, a citation shall be issued to all persons having such prior right, to show cause, at a day to be therein specified, why administration should not be granted to such applicant.
(2 R. S., p. 76, § 35.) Section 27 declares that administration in cases of intestacy shall be granted to the relatives of the deceased who would be entitled to succeed to his personal estate, if they or any of them will accept the same" in the following order: First, to the widow; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters; sixth, to the grandchildren; seventh, to any other of the next of kin who would be entitled to share in the distribution of the estate.
If any of the persons so entitled be minors, administration shall be granted to their guardians: if none of the said relatives or guardians will accept the same, then to the creditors of the deceased. (2 R. S., p. 74, § 27.) In case of intestacy, the assets of the deceased, after payment of his debts, shall be distributed to the widow, children or next of kin of the deceased: one-third to the widow, and the residue among the children, or such as represent them, if any of them have died.
If the deceased leave a father and a widow, the father shall take a moiety, and if no widow, the whole. If he leave no widow, then the whole is to be distributed among his children, and such as legally represent them. If the deceased shall leave no widow, or child, or representative of a child, then the whole is to be distributed to the mother and brothers and sisters, or the representatives of such brothers and sisters.
(2 R. S., p. 96, § 75.) *419 It would be difficult to use language more explicit than that contained in the 27th section, to designate those to whom letters were to be granted. In case of intestacy, the persons, who were by law entitled to participate in the distribution of the personal estate, were first to be preferred. They were naturally the best friends of the deceased, and most interested in the preservation óf the estate, and in its proper management.
But as, by the statute of distributions, the persons thus entitled would stand in different degrees of relationship and nearness to the deceased, it was necessary, in the view of the reviser who reported this section, to simplify the proceeding and conform it to the law and the practice as then understood. For this reason, the order of preference was arranged, although in carrying it out administration would not frequently be granted to the person entitled to succeed to the personal estate.
As for instance, the widow is first entitled to administration; yet if the deceased left a child or children, she would be entitled to the succession of but one-third of the estate, and the child or children to the remaining two-thirds. The child or children might have been more competent to administer than the widow, yet they would not be entitled to the administration of the estate, though succeeding to two-third parts thereof, unless the widow should renounce.
So the father, the brothers and the sisters of the deceased, are preferred to the grandchildren, although the latter would succeed to the whole of the personal estate, in preference to them.
It would seem to be obvious, therefore, that the legislature did not deem, it essential to the right of administration, that the person administering should stand in a position to take a share or portion of the deceased’s personal estate, and, therefore, the language used, “ that the administration shall" be granted to the relations of the deceased who would be entitled to succeed to his personal estate,” must in many instances be inapplicable, and not in conformity with the actual state of things.
The subsequent clauses of the section show, that such could not have been the meaning and intent of the- legislature, for they declare the order in which the letters are to be granted, and the granting *420 to' one or all of a class, necessarily excludes all subsequent classes.
They could not have meant that those relatives, and those only, who were entitled to succeed to the personal estate, were competent to take the letters, for, in the first place, the widow, who is first entitled, is not a relative of the deceased^ and Is not entitled to succeed to the personal estate of the deceased. She is not next of kin, and only takes a portion ’ of his estate under the statute of distributions.
She is in law the “best .friend” of her husband, and therefore justly preferred in the administration of his estate; second, the words “ who would be entitled to succeed to his personal estate” mean .only those who, according to the provisions of the statute of distributions, might be entitled to participate in the distribution of the personal estate of the decedent, and - this is made clear by the language used in designating those entitled in the seventh place, viz., “ to any other of the next of kin who would be entitled to share in the distribution of the- estate.” The true construction of the statute would therefore seem to be, that all persons who might be entitled to participate in the -distribution of the estate, being the widow, relatives, or those representing relatives of the deceased, have*the first right to the administration in the order named in the statute.
I think this view is greatly strengthened by the subsequent provision of-§ 27, which declares that “if none of the.said relatives or guardians will accept the same,” then the letters may be granted to any creditor of the deceased applying therefor. This de claration is emphatic that the letters cannot be given to a creditor unless all of the said relatives or the' guardiaps of such as may be minors enumerated, shall decline to accept the same.
The legislature therefore has distinctly said, that until all the relatives or the guardians of such as are minors shall have declined to accept letters, no creditor can be.entitled to, or have any claim to take them. In the present,case but one relative ' enumerated, the father, has declined to take out or accept the letters, and it is conceded, that the brothers of the' deceased, who were next entitled to them, being those enumerated in the fourth class, have not declinéd to accept them.
The surrogate *421 therefore had no authority, under the statute, to grant letters to the appellants, until all such relatives or the guardians of minor relatives, if any, had declined to accept them, and as they had a prior right to the appellant, the proceeding of the surrogate in granting letters to him, without the production of proof, and filing with him a written renunciation of all the persons having such prior right, was clearly irregular and in contravention of the express provision of section 35.
For the above reasons, and those so clearly and ably stated in the opinion of the Supreme .Court, I am for affirming the judgment appealed from, with costs. Dentó, Sutherland, G-ould and Allen, Js., concurred.
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