
    In the Matter of the Estate of John J. Gallagher, Deceased.
    Surrogate’s Court, Kings County,
    January 20, 1949.
    
      
      Newman, Hauser & Teitler for Thomas J. Gallagher, petitioner.
    
      David Groberg for Everett T. Vroman, as executor of Sadie B. Gallagher, deceased.
   McGarey, S.

The decedent herein died on December 19, 1948, intestate, leaving him surviving his widow, two brothers and a sister as his only distributees. His widow was appointed administratrix of his estate but has since died. The present application for letters of administration de bonis non is made by a brother of the decedent and consents thereto have been filed by his other brother and his sister. The executors under the last will and testament of the widow, who have qualified since the institution of the proceeding, oppose appointment of decedent’s brother and request the issuance of letters to one of them.

There appears to be some dispute as to the value of the assets left by decedent but none of the parties claims an estate in excess of approximately $20,000. On such demonstration, the estate of the deceased widow will be entitled, in distribution, to a much greater part of the net estate than decedent’s brothers and sister. (Decedent Estate Law, § 83, subd. 4.)

The amendment of section 118 of the Surrogate’s Court Act, by chapter 191 of the Laws of 1938, effective September 1, 1938, vested in the court the power, in its discretion, to award letters of administration to the legal representatives of a deceased distributee where no adult, competent person entitled to take or share in the estate and having a prior right to letters will accept appointment. Decedent’s widow had a prior right over decedent’s brothers and sister to letters of administration. The legislative note appended to the bill enacted into law makes it clear that it was intended by the amendment that in small estates where decedent’s spouse would be entitled to a greater portion of the net estate, letters of administration should be awarded to the legal representatives of such deceased spouse.

Accordingly, letters of administration de bonis non will issue to the executors under the last will and testament of the deceased widow or to either of them, on the duly acknowledged renunciation of the other, upon qualifying according to law.

Submit decree on notice.  