
    New York County.
    Hon. D. G. ROLLINS, Surrogate.
    November, 1885.
    Lussen v. Timmerman. In the matter of the estate of Gesche Lussen, deceased.
    
    Under 2 R. S., 74, § 28, .declaring that, among kindred of an Intestate of the same degree, males shall be preferred to females, in the grant of letters of administration upon the estate, a son who resides in another state has, in spite of that fact, a priority of right over a daughter resident here.
    Where, ponding an application, by one :i legally competent to act,” for original letters of administration of the estate of an intestate who resided in another state at the time of his death, a domiciliary administrator asks that ancillary letters be issued to him, the court, under Code Civ. Pro., § 2696, stibd. 2, though it has power, is not compelled to grant the prayer of the former, but may, in its discretion, issue letters, either original or ancillary, to the foreign representative.
    Applications for letters of administration, original and ancillary, of the estate of decedent. The facts are stated in the opinion.
    Jesse K. Furlong, for Henry Lussen.
    
    Sidney H. Stuart, for Celia Timmerman.
    
   The Surrogate.

On the 25th of July, last, this decedent died intestate in Hudson county, N. J., leaving certain personal property in the county of New York, and leaving, as her next of kin, nine adult children, of whom seven are residents of New Jersey, and two reside in this city. One of those two children, Celia Timmerman, filed a petition in this court on September 23rd last, asking that she be appointed administratrix of the estate, and that her husband be joined with her in its administration. Upon this petition a citation was issued, addressed to Margaret E. Mundeking, the petitioner’s sister, resident in New York. A citation was returned on October 2nd, 188-5, and the proceedings were then adjourned until October 16th, on which day Henry Lussen, a son of decedent, residing in New Jersey, submitted to the Surrogate a verified answer, setting up that, on September 2nd, 1885, he had filed in the Orphans’ court of Hudson county, N. J., a notice of his intention to apply for letters of administration on his mother’s estate; that a citation had been issued out of that court, returnable October 10th, and that on the 12th of October he had obtained letters, upon executing a bond in the penal sum of $16,000. His answer also declared his purpose to make application in the county for letters ancillary. On the same day, Henry Lussen filed a petition for such ancillary letters," setting forth therein the fact of his appointment to the principal administration in New Jersey.

It is contended by counsel for the petitioner, Mrs. Timmerman, that because proceedingsaipon her application were pending and undetermined in this court on October 10th, the day when letters were granted in New Jersey to Henry Lussen, she is now absolutely entitled to letters in this county.

Section 2696 of the Code of Civil Procedure provides that, upon application by a foreign administrator of an intestate’s estate, and upon the presentation of his foreign letters to the proper Surrogate, such Surrogate “ must issue letters of administration in accordance therewith, except in one of the following cases: .....

2. Where an application of letters of administration upon the estate has been made by a relative of the decedent who is legally competent to act, .... and letters have been granted accordingly, or the application has not been finally disposed of.” Now the circumstances for which this exception provides exist in the case at bar; so that, despite the application for letters ancillary, it is in the power of the Surrogate to grant Mrs. Timmerman’s petition (Weed v. Waterbury, 5 Redf., 114).

On the other hand, in exercise of his discretion, he may grant the petition for letters ancillary. This I am unwilling to do, under all the circumstances disclosed by the papers on file in these proceedings, unless the applicant shall give bond in the same amount that would be exacted from an administrator in chief. If he chooses, within five days from entry of order, etc., to give such bond he may take letters ancillary—or he may within that time take original letters—having, as he does have by virtue of the statutory preference of males to females, a right thereto in priority over his sister in spite of his non-residence (R S., part 2, ch. 6, tit. 2, § 28; 3 Banks, 7th ed., 2290).

If he shall fail to give bond, as above required, letters may issue to Mrs. Timmerman.  