
    In the Matter of the Estate of Maria Tyler, Deceased.
    
      (Surrogate’s Court, Westchester County,
    
    
      Filed March, 1888.)
    
    Executors and administrators—Who entitled to administration with will annexed—Code Civ. Pro., § 2643.
    The guardian of a minor is entitled to administration with will annexed in preference to creditors and other persons. The provisions of 2 Revised Statutes, 75, § 33, and Code Civil Procedure, section 2643, are to be construed together. Such guardian, if he be a person in all respects competent, is absolutely entitled to letters of administration, c. t. a., where the person named as executor in the will is dead.
    A will of the decedent was found in January, 1888, two years after letters of administration had been granted to one Hart. In the will certain executors were named who died before it was found. The will was admitted to probate and the letters of administration revoked, and the general guardian of Oarrie E. Taylor, an infant, who was sole residary legatee under the will, applied for letters of administration with will annexed. The general legatees resided, one in the state of Nevada, and the other in Brooklyn, N. Y. The latter had renounced his right to letters of administration with will annexed.
    
      William A. Woodworth, for petitioner.
   Coffin, S.

Among other things, § 2643 of the Code, provides that letters of administration with the will annexed, must be issued, upon the application of a creditor or person interested in the estate, as follows: First, to one or more of the residuary legatees, who are qualified to act as administrators; and, second, if there is no such residuary legatee, or none who will accept, then to one or more of the principal or specific legatees so qualified. After other provisions, not material here, the section finally authorizes the surrogate to issue such letters to any proper person designated by him.

By 2 Rev. Stat., 74, § 27, as amended in 1867 (chapter 782), it is provided that, if any of the persons entitled to administer in a case of intestacy, be minors, administration may be granted to their guardians. It has been held that a mere executor is “a person interested in the estate” of his testator, and it seems to follow that the general guardian of a minor legatee would, as such, be interested in the estate from which the legacy is derived. Hence, he may petition for the issuance of letters of administration, with the will annexed. Section 33 of 2 Rev. Stat., 75, provides that, where any person who would otherwise be entitled to letters _ of administration, as next of kin, or to letters of administration with the will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons. This section is unrepealed, and therefore settles the question here presented, as to whether the letters, in this case, can be issued to the guardian, as such.

There would have been no doubt on this subject, were it not for the habit which obtains of regarding the Code, as a new dispensation, and as furnishing the only rule for guidance. It will be seen that § 2643 of the Code, is substantially the same as 2 Rev. Stat., 71, § 14, which it supersedes. The latter declares that letters of administration with the will annexed shall be issued “ in the same manner and under the like regulations and restrictions as letters of administration in case of intestacy.” The former says such letters shall be issued to “one or more residuary legatees, who are qualified to act as administrators.” Both exclude minors. Section 32 of the Revised Statutes, declares a person under the age of twenty-one years incompetent to act, and then we come to section 33, above quoted, which, being in force, applies as well in this case as under the former practice.

The petitioner, being the guardian of the sole residuary legatee, is qualified to act, and as no person has a prior or equal right to the letters which he is entitled to receive, no citation need be issued.  