
    In the Matter of the Administration of the Goods, etc., of Francis W. Lasak, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Executors and administrators—Guardian of 'residuary legatee.
    Where the residuary legatee is a miner, his guardian is entitled to preference in the granting of letters of administration c. t. a., and especially so where he has been also appointed trustee to carry out the trust contained in the will.
    Appeal from order of surrogate appointing the New York Life-Insurance Company administrator with the will annexed.
    Victoria A. McKenzie, a daughter of and legatee named in the will of the deceased, presented a petition in which, among other things, she alleged that John G. Wenclel, the sole person named as executor in the will, had renounced as such, and prayed for a citation to all persons in interest to show cause why the New York Life Insurance & Trust Company should not bo appointed such administrator. On the return day it was objected that said company was not entitled, under the statute, to receive such appointment. Wherefore, it was alleged that said company had, since-the issuing of said citation, been appointed the general guardian of Clarence McKenzie, a minor, and alleged residuary legatee of the testator. It was then proposed, on behalf of Cordelia D. Chauvet, a daughter of testator and legatee of an income for life.of a portion of the residuary estate, and also on behalf of her son Albert L. Ohauvet, a legatee of a portion of one of the residuary shares, both of whom were present, that they respectively would accept the appointment and qualify.
    The opinion of the surrogate is as follows:
    Coffin, S. The statute, § 2643, as amended in 1881, provides that letters of administration shall be issued; first, to one or more residuary legatees who are qualified; second, to a principal or specific legatee; third, to husband or wife, next of kin, or heirs; fourth, to a creditor; fifth, to any proper person designated by the surrogate, to act as administrators. Where one of several, equally entitled, petitions for the appointment of himself, by the provisions of § 2644, no citation is necessary. It is only where there is some person or persons having a prior right to the petitioner, that a citation must issue to him or them. The petitioner in this instance did not pray for the appointment of herself as administratrix, but asked that the New York Life Insurance & Trust Company should be appointed. Thus, if the company is, for this purpose, to be regarded as a “ person,” and I take it for granted that under the powers conferred upon it by the legislature to act as guardian, administrator, etc., it is so to be regarded, then this application is to be considered as coming under the fifth subdivision of that section. Hence it was proper to cite all those who had a prior right, to show cause why this “proper person ” who was then not embraced in either of the prior subdivisions, should not be appointed. If, therefore, it had appeared at the hearing that others who had a prior right to the appointment were ready and willing to qualify themselves for the position, one or more of them would have been appointed. B ut as the fact was made to appear by the petition that the executor had duly renounced, and it was alleged that the company, since the presentation of the petition, had been duly appointed the guardian of the minor, Clarence McKenzie, who is one of the residuary legatees, the aspect of the case was changed. The evidence of the appointment was not presented, but the assurance of the learned counsel for the company that it had been made, and that he would present the certificate thereof, was deemed sufficient to warrant the court to await the filing of such certificate and then to determine whether it would grant the letters to it, on filing such other papers, if any, as might be needful.
    The object of the statute, in conferring a preference on the residuary legatees in such a case, seems to be to place the administration in the hands of those whose interest is to see that the estate is administered honestly and without undue and careless waste.
    It was objected by distinguished counsel that, as no petition for the appointment of the guardian had been presented by it, the present proceeding must be without result. In this respect it is believed he was mistaken. In an ordinary case of administration of an intestate's estate, where several persons are equally entitled to letters and one of them petitions, and obtains a citation for the others to show cause why the letters should not be granted to him, and on the return day the others appear and show good reason why they should not, the surrogate may issue letters to either or all of. the others without any petition to that effect being presented or filed. The original petition, it is assumed as in this case, will have stated facts 'sufficient to confer jurisdiction of the subject matter, and proof of the service of the citation of the persons.
    Thus the surrogate is in a position to adjudicate upon the matter, and he has a discretionary power to determine which shall administer the estate.
    The petitioner, as a person interested in the estate, had a right, under the section, to present the petition, and the same section leaves it discretionary with the surrogate as to the length of the notice to be given to the other person interested. It then designates the classes of persons to whom and the order in which the letters shall be issued. How, if it should so happen that there was one among several residuary legatees who was a minor at the time of filing the petition, having no general guardian, and it should be made to appear on the return day that he had attained his majority he would, undoubtedly, have an equal right with the others to the letters. And so, also, if it should appear that he had, since the filing of the petition, being still a minor, had a guardian appointed, the guardian, as such, would be equally entitled to letters. 2 R. S., 75, § 33. The guardian could appear without having been served with a citation.
    The chief considerations which induce the selection of the guardian to receive the letters, instead of any one else who may be entitled, are as follows: There seems to be a lack of harmony among the legatees which may lead to difficulties in the administration, if not to litigations; which should be avoided, if possible. The will orders and directs a sale of testator’s real estate for the purpose of his will operating an equitable conversion of it into personalty. The value of the estate is assumed to be $2,000,000. Hence any individual appointed would be required to give a bond in the penalty of $4,000,000, with two sureties who should each justify in the amount of the penalty; or otherwise, as the statute provides. The trust company has also, under a power given by the will to John Gr. Wendel, the person named as executor and trustee therein, been designated trustee to execute the trust created thereby. These reasons induce me, under the discretionary power conferred in such case, to award the letters and commit the administration of this large estate to the trust company, the certificate of its appointment as guardian having been filed and its consent to accept the same having been given through its counsel. Its financial standing and integrity of management are deemed a sufficient guarantee that the estate will be wisely and prudently administered.
    
      Charles F. MacLean, for app’lt, Ives; Donohue, Newcombe & Cardozo, (Stephen C. Baldwin, of counsel,) for app’lts, Cordelia W. and Albert Chauvet; R. E. Robinson, for resp’t, the New York Life Ins. & T. Co.; George G. Reynolds, for resp’t, Victoria A. McKenzie; Edward T. Bartlett, for resp’t, American Female Guardian Soc. & Home for the Friendless ; Frederick B. Van Vorst, for resp’t, Children’s Aid Soc.; Edgar M. Johnson, for resp’ts, Ophelia J. Cuthbert and others.
   Pratt, J.

The appointment by the surrogate of the Hew York Life & Trust Co. was eminently wise and should be affirmed.

The careful opinion rendered by tire surrogate renders any extended discussion unnecessary.

The purpose of the statute in preferring a residuary legatee as administrator is obviously because such person will ordinarily be interested in an economical administration of the estate. And when the residuary legatee is a minor, the same reasons suggest the appointment be given to the guardian, as provided by the statute.

Order affirmed.

Barnard, P. J., and Dykman, J., concur.  