
    
      The administration with the Will of Mary Ann Spinning.
    A residuary legatee, as such, has no right to letters of administration de lords non, with the will annexed.
   The Surrogate.

Horace Smith, residuary legatee under this will, applies for letters of administration do bonis non, with the will annexed, the sole executor named in the will having deceased since taking out his letters testamentary.

The Revised Statutes designate two methods of carrying on the execution of a will, in default of living, competent and willing executors.

The first is, where no letters have as yet been issued to any person, there being no executor named in the will, or the executors therein named being all legally incompetent or declining to act. In that event, letters of administration with the will go first to the residuary or other legatees, and, in case of their non-acceptance, then to the widow or kin, as in the case of intestacy. (3 R. S., 5th ed., p. 156, § 14.)

The other case is, where letters have been issued to the executors named in the will, and they afterwards all die or become legally incompetent. In that event, the widow or kin, as in case of intestacy, are first entitled to administer. (3 R. S., 5th ed., pp. 162-3, § 45.)

There having been letters testamentary once issued under this will, the petitioner, as legatee, has no present right to the administration.  