
    In the Matter of the Estate of John B. Page, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    1. Surrogate’s court—Practice—Return oe citation—Effect of no APPEARANCE ON RETURN DAY
    A citation was issued pursuant to the requirements of the statute informing the widow and next of kin of an intended application by the public-administration of New York city to the surrogate of that county for letters of administrator upon the estate of the intestate named therein. Upon the day and at the hour named in said citation the counsel for the widow and next of kin appeared, but the matter was not called up and no order was made in the case, no one appearing in behalf of the public administrator. Held, that the proceeding was out of court.
    3 Public administrator —Right of public administrator of New York county to administration—Laws 1882, chap.410, §§ 219 and 220, sued. 1.
    Laws 1882, chap 410, § 220 (the New York consolidation act), limits the provisions of section 219, subdivision 1, of said act, so that the public admistrator under said subdivision, has no right of administration upon the ■estate of one who was not a citizen of this state dying intestate without the state leaving effects within the county of New York, except in the cases mentioned in the two subdivisions of section 220.
    3. Same—Right contingent upon what—2 Rev. Stat.,'74, "§'27.
    By 2 Revised Statutes. 74, § 27 (which is still in force), the public administrator in the city of New York has the contingent right of administration in case of intestacy. After the refusal of the next of kin he has a preference over creditors and all other persons.
    4. Same—Notice of application—Laws 1882, §§ 227, 228.
    The public administrator, under section 227 of Laws of 1882, can give-notice; and, under certain circumstances, must give notice of an application for letters. After proper service thereof, and on the hearing of the application, if it appear that there is a widow or relative competent and qualified and willing, letters of administration should be granted to such widow or relative. If there are none .such, then the public administrator is entitled to administer.
    5. Same—Rights of where no creditors in New York county.
    As to what right, if any, the public administrator would have to claim that an appointment should be made either of himself or others in case there were no creditors in the county of New York, or none who desired the appointment of an administrator. Qiuere.
    
    Appeal from an order of the supreme court, general term, first department, affirming an order of the surrogate’s court, refusing to revoke certain letters issued to the public administrator.
    
      Alfred R. Page, for app’lt; Lewis Sanders, for resp’t.
    
      
       Reversing 4 N. Y. State Rep., 884.
    
   Peckham, J.

—The citation to the widow and next of kin of the deceased was to inform them of an intended application by the public administrator of New York city to the surrogate of the county for letters of administration upon the estate of the intestate named in the citation, and it was stated that such application would be made to the surrogate at the court house and at a certain day and hour. This citation was issued pursuant to statute, and was necessary under the circumstances to give jurisdiction to the surrogate to make any order in the proceeding.

When, upon the day and hour named in the citation, the counsel for the widow and next of kin of the deceased, appeared before the surrogate, ready, as is stated, to oppose the application, there was no appearance on the part of the public administrator. This is not disputed. The counsel for the widow says that no application was made to the surrogate for the granting of any letters of administration upon this estate at that time. He further says that he remained in court until after the second call of the calendar and was then informed by the surrogate that there was no such application upon the calendar for that day.

He then left the court house, and in truth no application was made to the surrogate on that day. Subsequently, and without notice to the counsel for the widow, and in his absence, application was made to the surrogate for the issuing of letters to the public administrator, and the same was granted.

It is thought that where no one appeared upon the return day of the citation, on behalf of the public administrator, and when the counsel for the widow did appear and was then ready to oppose the granting of such application, and no order was made in the proceeding at that time, the surrogate lost jurisdiction to proceed further without either the due service of another citation or the voluntary appearance of the widow or next of kin.' Their counsel had done all that he could be expected to do when he appeared for them as cited, and was ready to oppose the application. If no one appeared upon the other side, and no order was made in the case, the proceeding went down, and nothing further could be done without due notice.

We cannot agree that in such event the matter stood over ready to be heard whenever in the ordinary course of the business of the court it should be brought to the attention of the surrogate. The surrogate might have made an order adjourning the case to some specified time and thus retained jurisdiction, but he did nothing of the Mud and the proceeding was simply out of court.

This necessitates the reversal of the' order of the general term and of the surrogate and the entry of an order in the surrogate’s court annulling and setting aside and revoking the letters of administration heretofore granted to the public administrator of New York.

The learned counsel for the widow contends, however, in his argument and in his brief filed here that the public administrator had no right to letters of administration in this case as the deceased at the time of his death was a citizen of Vermont, and died within that state. He does not claim that a case was not made out conferring jurisdiction upon the surrogate of New York to issue letters of administration upon this estate to the proper person, and after a proper application, but he claims that the surrogate’s court had no right to grant letters to the pubic administrator.

As this question may arise in any future application in this case, it is better to state briefly our views regarding it now.

We agree that section 220 of the New York consolidation act (chapter 410 of the laws of 1882), limits the sweeping provisions of subdivision 1 of section 219, so that the public administrator under the the subdivision of that section has no right of admistration upon the estate of one who was not a citizen of this state, dying intestate without the state, leaving effects within the county of New York, except in cases mentioned in the two subdivisions of section 220, and this proceeding is not brought within either exception.

There are, however, cases where the public administrator has a contingent right of administration, after the refusal of others who have a prior right. By the Bevised Statutes, which upon this subject have not been repealed by the Code, it is provided (2 R. S., 74, § 27), that letters of administration in case of intestacy shall be granted to the relatives of the deceased if they will accept the same in the following order: First to the widow; second, to his children, etc. If none of these will accept then- it is provided that the creditors of the deceased shall be entitled to administration, but, “in the city of New York, the public administrator shall have preference after the next of kin over creditors and all other persons.”

The widow and next of kin in this proceeding, while non-residents, are citizens of the United States, as we may assume, and hence are entitled to letters in the order of priority named in the statute. 2 R. S., 74, 75, §§ 27, 32.

But it is not necessary that they should initiate- the proceedings. The public administrator, under section 227 of the above-mentioned consolidation act, could himself give notice of an application for letters, and after proper service thereof and on the hearing of the application, if it appeared that there was a widow or a relative competent and qualified and willing, letters of administration would be granted to such widow or relative, and if not, then the public administrator has the right to administer by the very terms of the revised statutes already quoted.

If no application should be made by the widow or next of kin within a reasonable time, either for original or ancillary letters of administration upon the property here which was left by a deceased person not a resident of the state, and who died outside of its limits, it would, we think, be the duty of the public administrator to himself, on proper notice, make application for letters and proceed as provided in the statute.

Reading sections 227 and 228 together, it is seen that the statute contemplates the making of the application by the public administrator even in cases where on the, hearing it may appear that there are persons willing, qualified and competent to take out letters. In such case the letters are issued to them. But the proceedings may be commenced by the public administrator, and he has such _ right evidently for the purpose of expediting by his application the issuing of letters to some one, and the placing of the property situated in New York and which belonged to the deceased in a way for proper administration.

Our decision is limited to the exact facts in this case. It is assumed there are creditors of the estate living in the city of New York who are anxious for the appointment of an administrator in this state. As to what right, if any, the public administrator would have to claim that an appointment should be made, either of himself or others, in case there were no creditors in the county of New York, or none who desired the appointment of an administrator, we do not decide.

For the reasons above given the order of the general term and of the surrogate refusing to revoke the letters issued to the public administrator, should be reversed, and an order made revoking and annulling such letters.

In regard to costs, we think they should be paid out of the estate, for the reason that the general term and the surrogate both held that the letters were valid and should not be revoked, thus affording fair justification for this conduct on the part of the public administrator; and where, as in this case, his entire good faith is not questioned it seems proper to make such a disposition of the costs of the proceeding. To that end leave Is granted to the public administrator upon the appointment of an administrator of this estate, to apply to him for the payment of the taxable costs of the proceeding.

All concur, except Rapallo, J., absent.  