
    In the Matter of David W. Williams, deceased, etc.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1887.)
    
    1. Administration—Letters of—Mother of one deceased intestate, HAS A RIGHT PRIOR TO THAT OF A BROTHER OF DECEASED.
    The mother of one deceased, intestate, is entitled to letters of administration in preference to a brother.
    2. Same—Non-residence of the mother does not alter the case.
    This fact is not altered by the non-residence of the mother within the state.
    3. Same—Rule applies also to ancillary letters.
    The rule applies to ancillary letters of administration as well.
    Appeal from decree of the surrogate granting letters of administration upon the goods, chattels and credits in the county of New York of David W. Williams, deceased, to Lucy E. Williams.
    
      Thomas Jackson, for Fielding L. Williams, app’lt; John Notman, for Lucy E. Williams, resp’t.
    
      
       Affirming 5 N. Y. State Rep., 361.
    
   Van Brunt, P. J.

The decedent died in June last at Clarksville in the state of Tennessee leaving him surviving no widow, child or father, but leaving him surviving a mother and a half brother. One Polk D. Johnson, of Tennessee, was in July last appointed administrator in the state. There are assets of the deceased in this county, and applications for authority to administer upon those assets have been made on behalf of three three persons; the decedent’s mother Lucy E. Williams, the respondent herein, his half-brother Fielding L. Williams, the appellant, and the said Polk D. Johnson.

The learned surrogate granted letters of administration to the mother, Lucy E. Williams, to the exclusion of the half-brother. See 5 N. Y. State Rep., 361. The mother was not a resident of the state of New York, but the half-brother was such resident.

It is claimed on the part of the appellant that Lucy E. Williams, being a non-resident, was disqualified and that therefore the surrogate erred in issuing letters of administration to her in preference to his half-brother who was a resident of this state, The provisions of the Revised Statute (2 R. S., 74), as amended by the laws of 1867, chapter 782, section 6, provide as follows:

Section 27. Administration in case of intestacy shall “be granted to the relatives of the deceased who would be entitled to succeed to his personal estate, if they, or any of them, will'accept the same in the following order:

“First, to his widow; second, to his children; third, to the father; fourth, to the mother; fifth, to the brothers; sixth, to the sisters; seventh, to the grandchildren; eighth, to any other next of kin who would be entitled to share in the distribution of the estate.”

Under this provision it is clear that the mother would be entitled to letters of administration in preference to the brother who claims them.

It is, however, urged on the part of the brother that the mother being a non-resident is excluded from receiving such letters. It is not claimed that there is any express provision of the statute which calls for such an exclusion, but that it is the policy of the law as derived from the legislation upon the subject of administration to exclude a person who is a non-resident where there are residents capable of administering the estate. In support of this proposition our attention is called to section 2662 of the Code, which contains provisions as to when a citation is required, and who shall be cited upon the application for letters of administration.

This section provides that every resident shall be cited, and the surrogate may, in his discretion, issue a citation to non-residents. It is argued, therefore, that as this section in terms dispenses with the necessity of a citation to nonresidents, an application here to obtain letters of administration may be made without any notice to non-residents, no matter what degree of kinship they may sustain to the deceased. In answer to the argument thus advanced, that this section supports the claim of the appellant, it is sufficient to say that the section does not provide that whenever a resident makes such application such notice may be .given, but mat the provisions of the_ section apply to every application for letters of administration and leave it discretionary with the surrogate whether persons out of the jurisdiction of the court shall receive notice of the application or not, a very common class of legislation in reference to special proceedings of this character which determine no property rights. Section 30 of the Revised Statutes is very significant upon this point, in the classes named as persons who are not qualified to receive letters of administration. It is as follows:

“No letters of administration shall be granted to a person convicted of an infamous crime, nor to one incapable by law of making a contract, nor to a person not a citizen of the United States, unless such person reside within this state,” etc.

The language, “nor to a person not a citizen of the United States, unless such person reside within the state,” seems to be very significant in this connection, because it contains a clear implication that a person who is a citizen of the United States, although not residing within this state, is not intended to come within the prohibition of the law.

In this provision of the statute, the framers thereof had before them the question as to the residence of the applicant for administration, and if they had intended to exclude, or had supposed that the policy of the law excluded non-residents from administering, they certainly, in connection with the provisions in regard to citizenship, the absence of which they pronounced to be a disqualification unless the person applying resided within this state, would have included non-residence of a citizen among the disqualifications. • It is no answer to these suggestions to say that the provisions in reference to non-residents who are not citizens were intended to apply only to those who were seeking to obtain ancillary letters of administration, because, if that had been the intention of the legislature, it would have been very easy for them to have said so. No •reference is made to ancillary letters, and the statute is entirely general in its character. The statute having ex-pressly provided as to the priority of the persons to whom letters of administration shall be granted, and having determined as to disqualifications, nothing can be added to it by judicial legislation, and the withholding of letters of administration cannot be justified unless the applicant is disqualified by the statute itself. Coope v. Lowerre, 1 Barb. Ch., 45; Emerson v. Bowers, 14 N. Y., 449.

Restrictions or modifications of statutes by implication are not to be favored, and unless the provisions are clearly inconsistent and cannot stand together, full effect must be given to all. No provision of the statute is impaired'in any manner by giving to section 30 its full effect and restricting-it to its declared provisions.

Simply placing non-residents upon a different position from residents as to notice of applications for administration upon assets existing within this state conveys to our mind no intimation or intention upon the part of the legislature to exclude any other, than those whom they have expressly declared shall not be entitled to administration.

The decree of the surrogate, therefore, seems to have: been correct, and should be affirmed, with costs.

Daniels and Brady, JJ., concur.  