
    Matter of the Goods, Chattels, and Credits of Catherine Hawley, Deceased.
    (Surrogate’s Court, Saratoga County,
    April, 1902.)
    Administration — Niece preferred to grandnephew — Code C. P. § 2660.
    A niece is preferred in administration to a grandnephew because nearer of kin to the intestate.
    The provisions of Code C. P., § 2660, that “ If several persons of the same degree of kindred to the intestate are entitled to administration they must be preferred in the following order: • First, men to women ” do not mean that if both claimants belong to the eighth class of the section —“ To any other next of kin entitled to share in the distribution of the estate ”— men of the class are to be preferred to women of the class, in all cases but, on the contrary, intend that where members of the class are of different degrees of kindred the nearest shall be preferred.
    Catherine Hawley, a resident of the town of Clifton Park, Saratoga county, died on the 17th day of June, 1901, intestate. On the 25th day of June, 1901, George H. Tuite, a grandnephew of the deceased, filed a petition in the Surrogate’s Court of said county praying that letters of administration be granted him upon the estate of the deceased. Thereupon a citation was issued to the persons named in the petition, returnable on the 24th day of July, 1901, on which day the counsel for the petitioner appeared and, having been unable to serve the citation upon all the parties named therein, the surrogate made an order directing a supplemental citation to issue, returnable on the 23d day of October, 1901, and directed to the parties who had not been served. On the 25th day of September, 1901, Fannie Van Horden, of the town of Waterford, a niece of the deceased, filed her petition praying that letters of administration be issued to her; and a citation was issued to the parties named in the last-mentioned petition, returnable on the 16th day of October, 1901. This citation was served upon the said George H. Tuite, one of the parties to whom it was directed, and, on the return thereof, the said Tuite and the said Van Horden appeared, each claiming a prior right to letters of administration upon the estate of the decedent. The petitioner, Fannie Van Horden, claimed that she was entitled to have letters issued to her immediately, The petitioner, George H. Tuite, who had not yet effected service of his citation upon all the parties to whom it was directed, asked for another supplemental citation and an opportunity to have the same served upon the remaining parties.
    The surrogate took the matter under consideration and thereafter and on-the 16th day of October, 1901, an order was entered in the Surrogate’s Book of Orders directing letters of administration to issue to the said Tuite and Van Horden jointly. A motion is now made by the petitioner, Fannie Van Horden, to vacate the order last mentioned, appointing herself and Tuite administrators and to have an order appointing her administratrix.
    O. A. Waldron for Fannie Van Horden, for motion.
    Thomas O’Connor for George H. Fuite, opposed.
   Lestek, S.

The order appointing administrators which purports to have been entered by my predecessor in office on the 16th day of October, 1901, is not signed by the surrogate and does not seem to have been entered by his express direction. It appears to have been entered, unadvisedly and through inadvertence, by the clerk; and both parties to this proceeding agree that it should be vacated.

The petitioner, Fannie Van Horden, claims to be entitled to such letters because she is of nearer kin to the intestate than George H. Tuite. The latter claims to have a prior right by virtue of the following provision contained in section 2660 of the Code of Civil Procedure: “ If several persons of the same degree of kindred to the intestate are entitled to administration, they must be praferred in the following order: First, men to women.”

Both of the present claimants are included in the eighth class mentioned in the previous portion of the section, and the argument of the counsel for the petitioner Tuite is that it is the intention •of the statute that this preference of men to women shall apply to all who are included in the same class.

This, however, is not in accordance with the language of the provision which makes it applicable only to “ persons of the same degree of kindred to the intestate.” The language of this provision contains an implication that, as between those of different degrees of kindred to the intestate, those of nearer kin are preferred to those of kindred more remote. On no other theory can the language of this provision lead to a reasonable result and it would do violence to the plain import of the words if the interpretation claimed by the petitioner Tuite were given to them; for the words “persons of the same degree of kindred” would then be interpreted to mean persons of different degrees of kindred who might be included in the same class.

The whole scheme of preferences is based upon nearness of kin to the intestate. Priority of application is not a ground of preference except among creditors. Bor can the grandnephew, George H. Tuite, stand in the place of his mother, who was one degree nearer of kin to the intestate than he, so as to be entitled to the prior right she would have had if living.

I am clearly of the opinion that, in the present case, the niece is to be preferred to the grandnephew.

An order may therefore be entered vacating the order of October 16,1901, directing letters of administration to issue to George H. Tuite and Fannie Van Borden jointly, and granting letters to the said Fannie Van Borden.

Decreed accordingly.  