
    Matter of the Application for Letters of Administration on the Estate of Philipina Milhau, Deceased.
    
      (Surrogate's Court, New York County
    
    
      Filed July, 1899.)
    Administration with Will Annexed — General Legatee Will be Preferred to Trust Company Guardian of Infant Residuary Leratee —Code Civ. Pro., § 264.3.
    A general legatee is entitled to administration with the will annexed in preference to a trust company acting as guardian of an infant residuary legatee and only next of kin of decedent. Chapter 781, Laws 1873, was only intended to enable such trust company to act for next of kin where those of them who were entitled in priority were disqualified or unable to act.
    Proceedings upon application for letters of administration with the will annexed.
    
      Miller, Peckham & Dixon, for general guardian and trust company; Charles C. Suydam, for general legatee.
   Varnum, S.

This is one of the undecided matters of Surrogate Arnold. One of the applicants for letters of administration c. t. a. in this matter is a general legatee under the will of the decedent, and the other is the guardian of an infant who is the sole residuary legatee and only next of kin of the decedent. The guardian is a trust company, and claims to have a right to the letters prior to that of the general legatee — first, by reason of its being such guardian, and, secondly, by virtue of the provisions contained in chapter 781 of the Laws of 1873. Those provisions are to the effect that whenever application shall be made to any court of this State, or to a surrogate of any county, for letters of administration upon the estate of any deceased persons, with or without the will annexed, and it shall appear that there are no next of kin of the deceased willing or properly qualified, or otherwise able to accept such administration, said court or surrogate may, at the request of any party interested in the estate, whether as creditors or beneficiary, grant letters of administration on said estate to said company. Neither of the grounds upon which the guardian rests its claim seems to me to support it. In its capacity of guardian the company, as the law now stands, is incapable of claiming or receiving letters of administration with the will annexed (Matter of Davis, Surr. Decs., 1896, p. 589), although under sub-division 5 of section 2643, Code of Civil Procedure, they might, in the order of priority established by the section, be issued to the guardian in its corporate or individual capacity, the company being authorized- by law to act as an administrator, either in cases of testacy or intestacy. The sub-division mentioned, however, defers the right to administration of the parties, to whim it refers, to that of those embraced in the second sub-division of the section, among whom the petitioning legatee is included. The provisions of the Laws of 1873, which, it is claimed, authorizes the appointment of the trust company in preference to the petitioning legatee, have, in my judgment, no application to this case. These provisions were, it seems to me, enacted to enable the trust company to receive letters of administration, either with or without a will, in cases where the next of kin, who are entitled to the letters under the statutes prescribing the order of priority in which they shall be issued, are disqualified, unwilling or unable to accept them. In other words, the object of tiie enactment was to substitute the trust company for the next of kin, and to treat it as if it was, under the circumstances, in the same class and in the same order of priority in which the next of kin are included in the statutes last referred to. In the present instance, the class and order to which the next of kin belong are found in sub-division 3 of section 2643. The opposing applicant for letters herein being one of those embraced in the class to which sub-division 2 of the same section relates, is entitled to them in preference to the company. The provisions of section 2643, so far as they pertain to the order in which letters are to be issued, with the exception of sub-division five and part of sub-division four, neither of which has any relevancy to the present controversy, are substantially a re-enactment of the provisions of the Revised Statutes (§ 14, art. 1, title 2, chap. 6, part 2, R. S'., 3d vol., 6th ed., p. 74), and in effect & continuation of the previous law on the subject. This being so, and the act of 1873 having been passed since the adoption of the provisions of the Revised Statutes, it is hardly reasonable to suppose that the legislature intended to repeal the act of 1873, by the enactment of section 2643 of the Code. Besides, as the provisions of the Code constitute a general law or statute, and do not disclose any evidence of an intention on the part of the legislature to interfere with the act of 1873 by their enactment, the act being a special one, or the creation of a special exercise of legislative power, could not have been abrogated by the previous enactment. Matter of Estate of Goddard, 94 N. Y. 548; Matter of Evergreens, 47 id. 216; Weiler v. Nembach, 114 id. 36; People ev rel. Leet v. Keller, 157 id. 90.

The application of the general legatee for letters is granted. Application granted.  