In re the Estate of Beard

— Order unanimously modified on the law and as modified affirmed with costs to petitioners, in accordance with the following memorandum: A reasonable consideration of the rights of the next of kin required the Surrogate to revoke letters issued to respondent County Treasurer as Public Administrator. The record discloses that prior to filing the petition for letters, respondent’s attorney was notified by appellants’ counsel that he represented possible distributees. Nevertheless, respondent’s attorney filed a petition for administration alleging that "distributees are unknown” and requested that respondent be appointed administrator of decedent’s estate. The Surrogate, unaware of the existence of any lawful distributees, issued letters of administration to respondent. Thereafter, petitioners commenced this proceeding seeking to revoke the appointment of respondent and to be themselves appointed administrators of decedent’s estate. Since the petition upon which respondent was originally appointed contained false representations of material facts, those letters should have been revoked (SCPA 711 [4]; Matter of Campbell, 192 NY 312, affg 123 App Div 212) even if the erroneous statements were innocently made (Matter of Daggett, 262 App Div 867; see also, Raysor v Gabbey, 57 AD2d 437, 443). Priority of right is based primarily upon the nearness of relationship and the extent of the interest. There was no reason to continue the Public Adminis 1123 trator in the administration of this estate once the Surrogate was apprised of the lawful distributees and a petition was filed by them. (Appeals from order of Cayuga County Surrogate’s Court, Contiguglia, S. — administration of estate.) Present— Callahan, J. P., Denman, Pine and Balio, JJ.