
    Matter of the Application of Emma Hudson, as General Guardian of Alfred C. Winkemeier for Letters of Administration upon the Estate of Christian F. Winkemeier.
    
      (Surrogate’s Court, Kings County,
    
    
      March, 1902.)
    Administration — Minor Child Preferred to Public Administrator of Kings County — Code C. P. §§ 2660, 2669.
    The public administrator of Kings county has no statutory right to administer upon the estate of a decedent who left a son over fourteen years of age, for, although the minor is incompetent to serve because of his minority his general guardian is entited to administer in his right, before the public administrator.
    Application by a general guardian for letters of administration.
    Frank J. Doyle, for petitioner.
    F. H. Ohase, for public administrator.
   Ohuroh, S.—

The deceased died intestate, leaving several infant children; the guardian of a son over fourteen years of age applies for letters of administration on his estate, which application is opposed by the public administrator of- Rings «county, wbo claims that under tbe statute applicable to bis office be bas a prior right to sucb administration. This contention is sustained by tbe decision of Judge Bergen, in tbe case of Speckles v. Public Administrator, 1 Dem. 475. Under all ordinary circumstances I should follow tbe decision of any other surrogate if I bad any doubt on tbe matter whatever, but an examination of tbe subject bas caused me to reach ia contrary conclusion and I cannot follow a ruling which seems to be wrong.

At tbe outset we should consider that it is tbe policy of tbe statute to grant to the next of kin who are entitled to share in a decedent’s estate tbe right to administer on tbe same, on tbe theory that those to whom tbe estate belonged would be most interested in tbe proper management of tbe same.

This policy of tbe statute is very forcibly expressed in Matter of Goddard, 94 N. Y. 550, by Chief Justice Ruger, in tbe following language: “ Tbe equity of allowing persons entitled to take by distribution tbe estate of tbe deceased person to select tbe agency by which sucb distribution should be made is so manifest that it ought not to be refused to them except in a case where its impropriety is clear and unmistakable.”

Tbe office of tbe public administrator was created for tbe purpose of providing a public official who should take charge of tbe estates where there was no next of kin entitled to act, on tbe theory that it would be better for sucb estates to have some competent public official act in preference to a creditor wbo would manifestly be interested to tbe extent of bis claim only.

In construing tbe language of the statute bearing on tbe matter it seems to me that we should bear tbe above spirit of tbe statute in mind and endeavor to reach a result which will be in harmony with tbe theory of tbe statute, rather than to follow •the precise wording of any statute. .

With tbe above spirit in mind we take up tbe consideration of tbe statutes involved. Section 2669 of tbe Code provides the public administrator shall have “prior right” to administer where there is “ no ” next of kin entitled to a “ distributive share in the estate of such intestate resident in the State,, entitled, competent or willing to take out letters of administration.” A technical reading of this statute standing alone would exclude a „minor from administering, because such minor is not “ competent ” to serve; but section 2660 of the Code provides : “ If a person entitled is a minor, administration must be granted to his guardian, if competent, in preference to creditors or other persons.” This language must be given effect and construed in connection with the provisions of section 2669, under which the public administrator claims' priority.

The provision that other persons shall only administer after the guardian of a minor is as explicit as the language of priority used in section 2669, with this additional fact: That if this contention of the public administrator was adopted then this provision relative to the guardian’s right (at least so far as Kings county is concerned) is practically repealed, because-there can never be a case in which it could be effective. This conclusion should, of course, be avoided if possible. It is my judgment that all that the language of section 2669 meant to-do was to give the public administrator a priority over creditors and other persons and that there was no intention in that section- to differentiate between a person who was entitled to-administer himself and one who could only do so through his. guardian.

This construction recognizes -the rights of the public administrator and harmonizes all parts of the statutes, and finally it .upholds the main spirit of the statute, viz.: To allow the persons entitled to share in the estate to be the persons who shall manage the same.

Let letters of administration issue to Emma Hudson, the general guardian of the infant, Alfred C. Winkemeier.

Decreed accordingly.  