Kircheis v. Scheig

The Surrogate. — The question as to the motives of the application does not seem to need any consideration, and the only question is, whether the letters were properly issued to the sister of the half-blood. By the Revised Statutes (2 R. S., p. 74, § 27) it was provided that administration, in case of intestacy, should be granted to the relatives of the deceased, who would be entitled to succeed to his personal [279] estate if they or anjr of them would accept the samé, in the order therein mentioned, (sisters being named under the fifth subdivision), and that if no such relatives would accept, then the creditors; except in the city of New York, where the Public Administrator is preferred over creditors. In Lathrop v. Smith (24 N. Y., 417), decided in June, 1862, it was held that the relatives of the deceased were entitled to administration, though not entitled to a distributive share when the letters were granted. Judge Davies, in the opinion the court (p. 420), says: “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 have- the first right to administer, in the order named in the statute.” By chapter 362 of the Laws of 1863 (p. 607, § 3), the 27th section (above cited) was amended by adding thereto, “this section shall not be 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.” ‘' By chapter 782 of the Laws of 1867 (vol. 2, p. 1927, § 6), the 27th section (above referred to) was again amended so as to read precisely in conformity to that section prior to the amendment of 1863, thus restoring the original statute, which received the construction of the Court of Appeals in Lathrop v. Smith (above), and which seems to be binding on this court as an authority directly upon the point. By the Revised Statutes (2 R. S., 71, § 14) it is [280] provided that letters testamentary and administration, with the will annexed, shall be granted to the ■residuary legatees, if any; if none who will accept, then to any principal or specific legatee, if any, and if there be none that would accept, then to the widow and next-of-kin of the testator, or to any creditor, in the same .manner, and under like regulations, as letters of administrations in case of intestacy. As there is, in this case, neither residuary, principal or specific legatee who can accept, and there being no next-of-kin except the sisters of the half-blood, the administratrix appointed seems to be entitled, as such next-of-kin, to letters. The petition should, be dismissed. Let an order be settled on one day’s notice.