
    Estate of Susan R. Place, dec’d.
    
      (Surrogate’s Court, New York County,
    
    
      Filed July 9, 1886.)
    
    1. Executors and administrators—Administration with the will annexed—Assets.
    Of three persons named by testatrix, hut two qualified, and their letters were revoked. The husband, a beneficiary under the will, applies for letters of administration c. t. a., alleging that there remains an unadministered asset, a chose in action, touching which there is pending a suit at law. The petition is opposed by a daughter of testatrix, a residuary legatee under her will. Meld, that the claim in suit was an unadministered asset and that the surrogate had jurisdiction to grant letters of administration, with the will annexed.
    2. Same—Pbiobity of bight—Code of Civ. Peo., § 2643.
    
      Held, that the fact that the chose in action for which action was pending was a claim against the husband of residuary legatee did not defeat her right to be appointed as administratrix c. t. a., in preference to the petitioner. Only for cause that constitutes a statutory disqualification can one who is otherwise entitled, be denied letters. The order of priority is settled by the Code of Civ. Pro., § 2643.
    
      J. K. Hayward, for petitioner, Emeline P. Hayward; Chas. F. Wells, for petitioner, James K. Place.
   Rollins, S.

Of the three persons named by this testatrix as her executors, but two have, ever taken letters testamentary, and the letters of those two have been revoked. " The estate is now, therefore, without a legal representative. The husband of the testatrix, who is a beneficiary under her will, applies for letters of administration with the will annexed. He alleges in his petition that the only unadministered asset known to him is a chose in action, touching which there is now pending, in the superior court of the city of New York, a suit at law, wherein the late executor is plaintiff and Mr. Hayward, the husband of one of the daughters of the testatrix, is defendant. The petitioner’s application in his own behalf, and his suggestion that, if that application be denied, letters should issue to the public administrator, are opposed by-Mrs^ Hayward, who insists—

First. That there is no occasion for making an appointment at all; and

Second. That if that contention is pronounced untenable, she is herself entitled to letters in preference both to the petitioner and the public administrator.

Section 2643 of the Code of Civil Procedure provides, among other things, that where, because of revocation of letters, there is no executor or administrator c. t. a. qualified to act, letters of administration c. t. a. shall issue as follows : “First, to one or more of the residuary legatees,” etc. Mrs.' Hayward is one of the residuary legatees -under her mother’s will; the two others are her brother, Barker Place, the deposed executor; and her sister, Mrs. Sullivan. Mrs. Sullivan makes no claim to letters. Barker Place is, of course, disqualified.

First. I think that the claim, for the establishment of which the removed executor was prosecuting an action at the time of the revocation of his letters, is an unadministered asset of the estate, and that the surrogate has jurisdiction, therefore, to appoint an administrator with the will annexed.

Second. I am equally clear that Mrs. Hayward is entitled to letters in preference to the petitioner. The circumstance that the claim referred to is a cause of action against her husband does not defeat her right of priority. It is not made a ground of disqualification by the statute, and only for cause that constitutes a statutory disqualification can one who is otherwise entitled be denied letters. Churchill v. Prescott, 2 Bradf., 304; Estate of Charles Morgan, 2 How. Pr. [N. S.], 194; Emerson v. Bowers, 14 N. Y., 449; Mc-Gregor v. McGregor, 3 Abb. Ct. App. Dec., 92; Coope v. Lowerre, 1 Barb. Chan., 45; O’Brien v. Neubert, 3Dem., 156.

Counsel for the petitioner claims that the provisions of section 2693 of the Code would justify the surrogate in granting his Ghent’s application. That section declares that the proceedings in procuring letters of administration or letters of administration c. t. a. for the successor of the original holder or holders of such letters shall “be the. same as in a case of intestacy.” But this declaration is evidently not intended to change the order of priority established by section 2643; it simply indicates the practice which must be followed by the person entitled to letters in order to obtain their issuance.

A claim similar to that which is set up by this petitioner was urged upon Surrogate MoVean in Matter of Ward (1 Red., 255).

Section 45, title 2, chapter 6, part 2 of the Revised Statutes (3 Banks, 6th ed., 83) provided that in case of the revocation of letters of all the executors or administrators of an estate the surrogate should issue letters of administration “with the will annexed, or otherwise, as the case may be, to the widow, or next of kin, or creditors of the deceased, or others, in the same manner as hereinbefore directed in relation to original letters of administration.”

Section 14 of the same title established the order of priority to letters of administration with the will annexed. (That section was repealed by the Laws of 1880, chapter 245, and in its place has been substituted section 2643 of the Code). Section 21 of the same title established the order of priority to original letters of administration in cases of intestacy. (That section is still in force.)

It was held by Surrogate McVean, that section 45, supra, should be construed as declaring that administration c. t. a. upon the estate of a decedent who had died testate, should in all cases be granted to applicants in the order of preference prescribed by section 14, and that administration cl. b. n., upon an intestate’s estate should be granted in the order of preference prescribed by section 21. This interpretation was subsequently approved by Surrogate Calvin, in Bradley v. Bradley (3 Bradf., 512).

The cases above cited confirm me in the opinion that the provision in section 2693 of the Code (which has taken the place of section -1-5, supra, of the Bevised Statutes), that in case of the death, incapacity, or removal of “all the executors or all the administrators to whom letters have been issued * * * the surrogate must grant letters of administration to their successors in like manner as if the former letters had not been issued,” means that for ascertaining rights of preference, resort must be had in cases of testacy to section 2643 of the Code, and in cases of intestacy to section 2Y, supra, of the Bevised Statues.  