
    In the Matter of an Application for Letters of Administration with Will Annexed, and Appointment of Trustee under the Last Will and Testament of Charles Drowne, Deceased.
    
      (Surrogate’s Court, Columbia County,
    
    
      Filed November 12, 1888.)
    
    1 Will—Construction of.
    The testator, by his will, after providing for the payment of debts, etc., and a bequest to his wife of his jewelry, provides, by the seventh clause of his will: “I give, devise and bequeath all the rest, residue and remainder of my estate wherever found, to my brother, Wm. L. Drowne, to be held in trust by him for the benefit of my wife * * * and direct my executor * * * to invest the same to the best advantage for her benefit, and pay her quarterly the interest, dividends and income therefrom, to be used by her for her support, and in any manner she may think proper, the same to remain in effect until her decease or her marriage,” and then, by the eighth clause, provides, “ Afterthe decease or marriage of my wife * * * I give, devise and bequeath all my estate named in item seventh to my brothers and sisters, to be equally divided between them.” Reid, that the widow is not a legatee in any sense of the principal or any part of it, and at most can be designated as a legatee of the income and could hardly come within the definition of the specific legatee.
    3, Same—Who entitled to letters of administration, C. T. A.—Code Civ. Pro., § 2643, sued. 1.
    If the will creates a residuary estate, and, at the same time, gives or bequeaths the created residuary estate to the brothers and sisters of the testator, they take a vested estate as residuary legatees, though the payment or distribution of such residuum is suspended during the life or widowhood of testator’s widow, and they are to be regarded as the residuary legatees within the meaning of the Code Civ. Pro., § 2643, subd. 1, and entitled to letters of administration, C. T. A., and to be appointed trustees under said will.
    3 Administrators and executors—Males should be preferred.
    Preference should be given in the appointment of administrators to males over females when they are of the same class of legatees. The appointment of the cestui que trust as administratrix and trustee, for her own benefit, should not be favored when there are others equally entitled ■ against whom no objection can be urged.
    
      McClellan & Brown, for Gideon S. Drowne and Thomas Wilson; Nichols & Bacon, for Fannie B. Drowne, the widow.
   Collier, S.

Charles Drowne, of the town of Canaan, Columbia county, N. Y-, died on or about the 22d day of August, 1888.

He left a last will and testament which, bears date November 13, 1875, and which was proven and admitted to probate as a will valid to pass real and personal property by the surrogate" of Columbia county, on the 24th day of September, 1888.

In and by the will of said deceased, after providing for the payment of his debts and funeral expenses, and erecting a monument, and making certain specific bequests, amongst which by the sixth clause is the bequest to his wife, Fannie B. Drowne, of all his jewerly of every name and kind soever, the testator, in and by the seventh clause, gives and devises all the rest, residue and remainder of the estate as follows:

“Seventh. I give, devise and bequeath all the rest, residue and remainder of my estate, wherever found, to my brother William L. Drowne, to be held in trust by him for the benefit of my wife, Fannie B. Drowne, and direct my executor, William L. Drowne, hereinafter appointed to invest the same to the best advantage for her benefit, and pay her quarterly the interest, dividends and income therefrom, to be used by her for her support, and in any manner she may think proper, the same to remain in effect till her decease or her marriage,” and then in and by the eighth clause disposes of the said rest and residue as follows:
“ Eighth. After the decease or marriage of my wife, Fannie B. Drowne, I give, devise and bequeath all my estate named in item seventh to my brothers and sisters, tó be equally devided between them.”

And by the ninth clause of the will appointed his said brother William L. Drowne, of the town of Canaan, sole . executor. This will bears date the 13th day of November, 1875.

The deceased, at the time of his death, left him surviving his widow, Fannie B. Drowne, and the following brothers and sisters: R. Olmstead Drowne, Gideon S. Drowne, Matilda Drowne and Mary Drowne, all of age.

William L. Drowne, the sole executor named in the said will, died prior to the decease of said testator.

After the probate of said will, Gideon S. Drowne, a brother of said testator, made application for letters of administration with the will of said deceased annexed, and asked that letters be issued to him and to one Thomas Wilson, whom he asked to be joined with him in the administration, and that letters be issued to them and that they be appointed trustees under said will, and the said Thomas Wilson consented to be so joined.

The other brother and the sisters of the testator file with such application a renunciation of the right to letters and to be appointed trustees, and request the appointment of said Gideon S. Drowne and Thomas Wilson.

On the filing of that application a citation was issued to the widow and she was required to show cause why Gideon S. Drowne and said Thomas Wilson, should not be so appointed and letters issued to them.

Upon the return of that citation, the brothers and sisters of the testator appeared in support of the application, and Fannie B. Drowne, the widow of said testator, opposed the appointment. of the said Gideon S. Drowne and Thomas Wilson, and asked to, be appointed herself.

And the question to be determined is, who is entitled to letters and to be appointed trustees? The brothers and sisters of the testator claim that they are the residuary legatees under the will of said deceased, and as such, under subdivision 1 of section 2643, are first entitled.

Fannie B. Drowne claims that she is the sole residuary legatee, having an estate for life or until marriage in the whole residuary estate created by the said will.

Section 2643 of the Code of Civil Procedure declares the order of priority governing the appointment and issuing of letters of administration, with the will annexed, of the estate of the testator:

First. To one or more of the residuary legatees who are qualified to act as administrators.
Second. If there are no such residuary legatees or none who will accept, then to one or more of the principal or specific legatees so qualified.
Third. If there are no such legatees, or none who will accept, then to the husband or wife, or to one or more of the heirs or devisees so qualified. *****

The claimants for letters must come either under the first or second subdivision of this section; both claim under the first.

Now, a residuary bequest is defined to be a bequest of all the testator’s estate not otherwise effectually disposed of. The seventh section or clause of the will creates a residuary estate, places that residuary estate in trust for an uncertain period, to wit: during the life of his widow or until she shall marry again, and directs the payment of the income therefrom to his wife during her life or until she shall marry again.

It does not give her the possession, or the right to the possession of any part of the rest and residue of his estate, nor any part of the principal of such trust estate, nor any vested interest in the principal, She is simply entitled to the income from such residuary estate through the medium of a trustee to be appointed or an administrator with the will annexed. She is simply the cestui que trust, a person for whose benefit the trust was created. The will creates a residuary estate by the seventh clause, and places such residuary estate in trust during the life of said Fannie B. Drowne, or until her marriage, and such residuary estate is disposed of by the eighth clause of the will, is given to the brothers and sisters of the testator, gives them a vested interest in such residuary estate, the possession of which, or payment to them, is deferred during the continuance of the trust. No part of the principal of the residuary estate is given to the widow. She is not a legatee, in any sense, of the principal or any part ofQ it, and at most can be designated as a legatee of the income, and would hardly come within the definition of a specific legatee, as no part of the estate left by the testator a,t his decease is given to her in or by the seventh clause of the will, and, from the several cases cited by the counsel for Fannie B. Drowne, I cannot discover that in any of them have the court held that a life-tenant, or a person entitled to the income of a residuary estate placed in trust, was a residuary legatee. It seems to me that if the will creates a residuary estate,, and, at the same time, gives and bequeaths the created residuary estate to the brothers and sisters of the testator, that they take a vested estate as residuary legatees, as legatees of such residuary estate created by the will, though the payment or distribution of such residuum is suspended during the life or widowhood of Mrs. Fannie B. Drowne, and that they are to be regarded as the residuary legatees; within the meaning of subdivision 1 of section 2643, and entitled to letters of administration 0. T. A., and to be appointed trustees under said will.

In the case of the Matter of Beakes (5 Dem., 128), the court seem to hold that those ultimately entitled to receive the fund placed in trust do not take as residuary legatees, but rather as remaindermen or general legatees, and classes all the persons interested in the fund, including the person who has a life interest, together under the second subdivision of section 2643.

Now, while I do not agree with the learned surrogate in this classification of the legatees, yet, conceding it to be correct, and conceding that Fannie B. Drowne and the brothers and sisters of the testator are to be classed together under the second subdivision, yet, exercising the discretion belonging to the court, which of several persons to designate, I should direct that letters issue to Gideon S. Drowne and Thomas Wilson, and should direct that they be appointed trustees under the will of said deceased, as such appointment is asked for by all the parties to whom the principal of such rest and residue of the estate is given, devised and bequeathed, as they have the greater interest, in the estate than Fannie B. Drowne, whose estate or interest cannot be correctly determined, as she has not an absolute right to the income during her life, but only dur • ing widowhood. And I think besides, that preference should be given to males over females when they are of the same class of legatees, and I do not think that the appointment of the cestui que trust, as administratrix and trustee for her own benefit, should be favored when there are •others equally entitled against whom no objection can be urged.

I, therefore, direct that letters issue to Gideon S. Drowne and said Thomas Wilson, and that they be appointed trustees on their executing the proper bond with two or more sureties in a penalty of $76,000, to be approved by the surrogate, and that the application of said Fannie B. Drowne be denied.  