In re the Estate of Breitenbach

Calyek, S. Henry Breitenbach died on October 29, 1954, leaving a will which named Anna Bannon as executrix and the Columbus Trust Company as trustee of a trust, the corpus of which was the testator’s entire residuary estate. The will was duly offered for probate, but prior to the return date of the citation in the .probate proceeding, the named executrix, who was also the income beneficiary of the trust, died. The will was thereafter duly admitted to probate and letters of testamentary trusteeship were issued to the Columbus Trust Company. There are now before the court two petitions for letters of administration with the will annexed, one filed by the Columbus Trust Company, and the other filed by Louis H. Breitenbach, a remainderman under the trust who is entitled to one half of the corpus thereof. The question to be decided is whether the testamentary trustee is entitled to letters in preference to the principal remainderman. It has been held that where the residuary estate is held in trust, the beneficiary of the trust is entitled to letters of administration with the will annexed in preference to his trustee. (Matter of Thompson, 33 Barb. 334, affd. 28 How. Prac. 581 ; Matter of Roux, 5 Dem. 523.) In the Thompson case (supra), the court said (p. 335), “ The intent of the statute was to give the right to administer to the party really interested in the residue of the estate.” It has also been said that, “ It is the intention of the legislature for letters to be granted to the person having the greatest pecuniary interest in the decedent’s estate.” (2 Warren’s Heaton on Surrogates’ Courts, p. 778, citing Matter of Fagin, 155 Misc. 533, and Quintara v. Morgan, 4 Dem. 168.) Letters of administration with the will annexed will, therefore, be granted herein to Louis H. Breitenbach. Submit order accordingly.