
    Fannie P. Cottle, appellant, vs. Levinus Vanderheyden, general guardian of Charles L. Petrie, a minor, respondent.
    A married daughter of an intestate, over the age of twenty-one years, is entitled to administration upon his estate in preference to the guardian of a minor.
    APPEAL from an order of the surrogate of Herkimer county appointing the respondent administrator of the estate of Joram Petrie, deceased.
    On the 16th day of October, 1869, Joram Petrie died, at Little Falls, Herkimer county, intestate. He left no widow. His only next of kin entitled to share in his estate were Fannie P. Cottle, wife of O. 0. Cottle, of Buffalo, who was his daughter and more than twenty-one years of age, and Charles L. Petrie, of Little Falls, a minor of the age of seventeen years, his son. The respondent, Levinus Vanderheyden, of the city of Troy, was appointed general guardian of the minor son, and filed his petition with the surrogate of Herkimer county, upon which a citation was issued requiring the daughter to show cause why letters of-administration should not be issued to the respondent as guardian of the minor son.
    On the return day of the citation the daughter personally appeared before the surrogate and objected to the granting of administration to the guardian, and claimed the right of administration for herself, and offered to take the administration. The guardian claimed that he was entitled to priority over the daughter.
    The surrogate decided that a guardian of a minor son was entitled to administration in preference to a daughter of full age, and made an order granting letters of administration to the guardian.
    From such order, the daughter, Fannie P. Cottle, appealed to the Supreme Court.
    0. 0. Cottle, for the appellant.
    1. The appellant, being the only adult child of the intestate, and there being no widow, was entitled to administration in preference to every other person. (2 R. S., ch. 6, title 2, §§ 27, 32, 33. Wickwire v. Chapman, 15 Barb. 302, 304. Cluett v. Mattice, 43 id. 417, 420. Laws of 1867, vol. 2, p. 1927.) The person entitled to a preference in administration cannot be excluded from her right, except in the cases enumerated in the statute. (Harrison v. McMahon, 1 Bradf. 283. Coope v. Lowerre, 1 Barb. Ch. 45. McGregor v. McGregor, 1 Keyes, 133.) The appellant was entitled to be appointed administratrix on her own petition, without any citation to any person. (Cobb v. Beardsley, 37 Barb. 192.) Married women are capable of acting as administratrixes as though they were single women. (Laws of 1867, vol 2, p. 1927.) It is believed that the foregoing cases establish the right of the appellant to a reversal of the surrogate’s decision, and to a decree directing her appointment as administratrix, but as a contrary and erroneous opinion has been entertained by some inferior tribunals, it is hoped that this court, by its decision in this case, will put an end to the great inconvenience and injuries resulting to persons and estates, from strangers seizing upon estates by means of an appointment as guardian of some child on whom they may by chance be able to impose, so long as there may be an adult entitled to share in the estate and competent to administer.
    To enable us the better to understand the statute, I refer to the state of the law as it existed prior to the Revised Statutes. Prior to the time of Henry VHI, the clergy seized upon estates under a claim of right to administer, and history informs us of the result to the estates. (Taylor v. Delancy (2 Caines’ Cases, 149)' shows that our statute of February 14, 1787, was taken from 21st Henry 8th, which secured the right of administration to the next of kin, and remedied the enormous evils resulting from administrations by strangers, by giving the right to the widow or next of kin, if they would accept the same. Our statute of February 14,1787, (ch. 19,) provides “that where any person dieth intestate, the widow or next of kin, or any of them, of the deceased person, if they or either of them will accept the same, and if not, some other proper person or persons, shall be deputed to administer the goods of the intestate.” And chapter 38 of Laws of Hew York, passed February 20th, 1787, is substantially the same in effect, but expressed in more modern language.
    The attention of the court is particularly called to the following preamble and statute, viz: Chapter 35 of Laws of New York, passed March 23, 1792, in its preamble recites: “Whereas administrations have been frequently granted in this State, upon the mere suggestion of the party applying for the same, without due proof of the death of the person upon whose estate they are granted; and it has happened that administrations have been granted upon the estates of persons who were then living and residing within this State, and administrations are frequently granted to persons in nowise related to the intestate, and who procure administrations only with a view of appropriating the estates of intestates to their own use, from which practices great inconveniences are likely to ensue.” For remedy whereof, 1. Be it enacted, &c., that no letters of administration shall be granted, &c., until due proof be made before the said judge or surrogate, to his satisfaction, that such person is dead and died intestate.
    2. That when application is made for letters of administration upon the estate &c. of any person dying intestate, by any person or persons mot entitled to the same as next of kin to the intestate, the judge of the court of probates, or surrogate, to whom such application shall be made, shall, before the granting of the administration, issue a citation to the next of kin to the intestate, summoning them to appear and show cause,” &c.
    Thus it will be seen that at an early period of the existence of the State the evils arising from appointing strangers administrators had been so great as to attract the attention of the legislature and to compel them to provide a remedy, which they happily did, by compelling the surrogate to warn the next of kin of the danger, and notify them to claim and protect their right. Is the evil any less where persons, strangers, obtain guardianships of minors for the purpose of securing the administrations of estates “ with a view of appropriating them to their own use?” The statute of March 27, 1801, chapter 77, is the next one, but does not materially change the law upon this question. (See Kent & Radcliff’s edition Revised and Session Laws, vol: 1, pp. 217-219, 2d ed.) These provisions are substantially preserved in the Revised Laws of 1813. (See act passed April 3, 1813, vol. 1, p. 445.) Down to the time the Revised Statutes went into force there never had been a lavy which recognized the right to.appoint a'guardian as administrator under any circumstances.
    I have examined the statutes of a large number of the United States and the laws of England, and find that there does not exist any authority any where, (except such as may be found in our Revised Statutes,) for the appointment of a guardian as administrator of the estate of an intestate. Therefore the' provision of the Revised Statutes, giving a guardian any place at all, was an innovation, and should be closely scanned to see how far the legislature intended to alter the preexisting law. The guardian may still be a stranger to the blood and estate of the intestate, and the fact that he has as a preliminary, swallowed a minor and his, private estate, may not diminish his capacity as administrator for consuming the intestate’s estate. Though he may have succeeded in getting possession of a minor, body, soul and estate, he is still a stranger, from the appointment of whom as administrator “ great inconveniences are likely to ensue,” for remedy whereof the prior right of administration is secured to the next of kin. Whatever ambiguity there may be about the section 27, the section 33 was enacted at the same time and is explanatory of it, and clearly defines the position of the guardian in accordance with reason and the spirit of the statute. That section 33 is, “if any person who would otherwise be entitled to letters of administration as next of kin shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons.” The words “or other persons,” as used in this section, have received judicial construction. Their meaning is clearly and 'satisfactorily defined in Wickwire v. Chapman, (15 Barb. 302, 304,) and Cluett v. Mattice, (43 id. 417,) to be persons not entitled to share in the estate. The respondent applied in the capacity of guardian of a minor who would otherwise have been entitled to letters of administration as “ next of kin.” and Ms degree of preference is defined by section 33, and thereby he simply outranks “ creditors,” &c. Expressio imius est exelusio alterius, is a maxim in the construction of statutes. (Story, J., 3 Story, 87, 89.) And the maxim is peculiarly applicable to a ease like this, where the statute confers a right which never before existed, and where an extension of the interpretation beyond the express words of the statute would contravene the general policy of the law. The appellant applied as the daughter or child of the intestate, for letters in her own right, and her degree of preference is defined by section 27, and thereby she outranks every person except the widow. The policy of our law does not favor administration by strangers. (Goods of Williams, Tucker’s Surr. R. 8.) A relative who has no interest is a stranger. (Dayton’s Surr. 235.) The policy of the system of administration is to commit administration to the person having the greatest interest in the estate. (8 Gill & J. 79, 85. 1 Brad. Surr. R. 495. 2 R. S. ch. 6, title 2, art. 1, § 14.) In support of the general policy of the statute, it may be well to bear in mind that it is the general experience of mankind that nobody is so competent to take care of property as the owner, and one of the chief rights of property is the right to its control and possession, and the appointment of a stranger to the control of an estate, over a competent person largely interested therein, not only contravenes the manifest scope and spirit of the statute, but-impairs the most essential rights of property, and is repugnant to natural justice, and may be well stigmatized as “ practices from which great inconveniences are likely to ensue.” And history is full of the 16 inconveniences ” which have ensued to peoples and estates from ambitious or avaricious persons setting up claims to control estates or rule nations under the shadow of the names of children or minors. It is a lamentable spectacle; an orphan brother and sister, and a contest over the administration of their estate. But the sister’s controversy is not with her brother. She is battling to rescue her brother as well as their estate from pernicious control. Her struggle is with strangers who have usurped her rights, grasped her property and sought to rob her of the affection of her brother. And one of the “ inconveniences likely to ensue” from granting administrations to strangers who can control a minor, is the inevitable sundering of family ties, ■ which the strangers must accomplish before they can place themselves in a position to contest the right of the adult member of the family. It is the experience of courts that guardianships are frequently sought as a means of obtaining administration, and in such cases in addition to the usual inconveniences ensuing from administrations by strangers, we shall have the family ties sundered by the strangers, and it is not often that such ties will be broken' byhonorable means, nor for justifiable purposes, nor by worthy persons.
    The clear reading of the statute is in harmony with the general policy of the law, which prefers next of kin to strangers, and those who are entitled to share in the estate to those who are not, and the relatives mentioned in sectian 27 are entitled to preference over persons-applying as guardians, who are practically strangers.
    The contrary of these propositions was decided by the surrogate ; and his decree should be reversed, with costs to be paid by the respondent, and letters should be directed to be issued to the appellant upon her petition and bond now on file with the surrogate.
    
      A. Loomis, for the respondent.
    I. The guardian of a male minor is entitled to letters of administration in preference tb a married female of the same degree of kindred.
    The 27th section of the act “ granting letters of administration,” settles the priority in cases of intestacy : “ 1st, to the widow; 2d, to the children,” and so on, 3d, 4th, 5th, 6th. and 7th, and after the 7th, to the next of kin. It provides that if any of the persons so entitled be minors, administration shall be granted to their guardians. It next provides that if none of the kindred will accept, the creditors are next entitled, and if no creditor applies, then to any other person legally competent. The next section, 28, provides that when several persons of the same degree of kindred are entitled to administration, they shall be preferred in the following order; first, males to females; second, relatives of the whole blood to those of the half blood; third, unmarried women to such as are married. In section 14 of the same statute, the order of preference in granting letters of administration with the will annexed, that is where the executors renounce or-neglect to act, are dead or incompetent, is different, and is provided for in section 14, and goes, first, to residuary legatees; second, to principal or specific legatees ; third, to the widow and next of kin, or to any creditor of the testator. In this section no provision is made for the case where the person entitled is a minor, as it is in cases of intestacy in section 27; and if there was a will in this case there might be good grounds for denying the prior right of the guardian of an infant in one class over that of a person in succeed-. ing classes, or perhaps even to creditors or other persons. IT or is the priority of males over females extended, as is done in cases of intestacy in section 28. This deficiency, in cases of wills is, however, provided for subsequently in section 33, so far as relates to minors, by providing that in such cases letters with the will annexed shall be granted to the guardian of persons next of kin in preference to creditors or other persons.
    It will be observed that the statute makes a distinction, and provides in different sections for the two cases, one of intestacy and the other of administration with the will annexed. The priority of right to administer in cases of intestacy is defined and fixed in sections 27 and 28, and needs no other provision to make it clear and well defined; whije that in cases of administration with the will annexed is contained in section 14, omitting, however, to provide for the case of a minor relative, which'is afterwards contained in section 33, obviously inserted for that purpose only.
    The case of Wickwire v. Chapman, (15 Barb. 302,) relied upon by the petitioner, does not, on critical examination, bear out the syllabus or marginal note, or if that construction be correct, the case itself shows a misconstruction of the statute and ought to be re-examined. That case was dissimilar to this, and the decision can be sustained on the other facts peculiar to it. The case was this : The granddaughter of the intestate applied for letters of admitiistration. The petition gave the names of three children of the intestate, who were residents, and of five grandchildren, minors, some of them males, residing out of the State, and having no general guardian; proper citations were issued and duly served, except that the service on the non-resident minor grandchildren was on a special guardian appointed by the surrogate without notice to the children or their parents. It appears also, in the opinion of the court, that the citations were duly published in the State paper. This made the service on the non-residents complete as the statute then stood, without regard'to the service on the special guardian, which, without the publication, would have been irregular. On^the hearing no one appeared and claimed letters as against the petitioner, but one of the resident children did appear and object to granting letters to the petitioner, on the ground that the citation had not been properly served on the nón-resident minor grandchildren. The objection was taken to the manner of serving the citation on a special guardian for the non-resident grandchildren, and seems to have overlooked the fact that the citation was also served on them-by .publication. The court held that the service of citatians was sufficient; that the publication in the State paper was proved, and it is stated that there was no general • guardian of the non-resident infant grandsons. The decision of these points was conclusive in the case ; no one entitled to priority having appeared and claimed letters, they were properly granted to the petitioner, by the surrogate. From this decision of the surrogate an appeal was taken to the Supreme Court, which sustained and affirmed the surrogate’s decision; but the judge, in giving his opinion, instead of resting solely on the good grounds that the citations had been regularly served, and that no one having prior right appeared and claimed letters, and that as to the non-resident grandsons it did not appear that they had any general guardian competent to take letters in their behalf, went further for a reason, and unnecessarily and mistakenly brought in section 33 as the basis of his decision, and held, under that section, that the guardian of infant males is not entitled to priority over any of the relatives, but only over creditors and other persons mentioned in section 33. On examining this opinion and the statutes, it is manifest that the judge did not advert to ' the distinction made by the statute between the right to.administer in cases of intestacy and those of administration with the will annexed.
    
      Cluett v. Mattice (43 Barb. 417) was a case of application for letters of administration with the will annexed, and is governed by sections 14 and 33 of the statute. The testator made his will, appointing his wife sole executrix, and disposed of only about $3000 out of $19,000—his entire estate. The wife died, and the testator then married the respondent, and soon after also died, leaving her and four children by his first wife. These four children had a general guardian appointed, who applied for letters of administration with the will annexed, and the widow also made a counter application. The surrogate decided in favor of the widow, and the general guardian appealed to the Supreme Court, which sustained his decision. In giving his decision, Judge Ingalls relies on section 14, above cited, as applicable to cases of administration with the will annexed. He says, “ there are no residuary or specific legateesthe next person entitled after residuary, specific and principal legatees, is the widow; and the court decided in this case that she is, within the spirit and intent of the statute; and he cites the case of Wichwire v. Chapman with approbation, and fails to discriminate between the two sections of the statute, without apparently perceiving that they provide for separate and distinct cases, the one for cases of intestacy, and the other' for those where there is a will to be administered; and cites | , 7 the case of Wichwire as leading to the conclusion “ that no guardian of an infant, not a residuary or specific legatee, is entitled to letters of administration with the will annexed, in preference to the widow of the testator”—a conclusion which is no doubt sound and good law in the case, where there is a will to be administered; but which can in no way be predicated upon the case cited where there was no will, nor upon the case at bar, which is equally destitute of this important feature.
    There is no way in which the statute in relation to the granting of letters of administration in cases of intestacy, and with the will annexed, can be made intelligent and harmonious, and so construed in accordance with the rules of construction as to give every part effect, other than to regard sections 27 and 28 as applying exclusively to cases of intestacy, and sections 14 and 23 to those of administration with the will annexed. This construction makes every part efficient and harmonious.
    The provision of section 27 divides the persons entitled to administration as relatives into seven classes, (as amended in 1867 into eight .classes, by including the mother as in the fourth class next after the father, which is the third,) the relatives in each class having preference to those in the succeeding classes; and then adds, “if any of the persons so entitled be minors, administration shall be granted to their guardians.” The question is, where does this provision apply ? Does it mean that if any one of the higher class is composed of minors, their guardians shall be substituted in their places and be entitled to administration in preference to an adult of the next or succeeding class, as we insist? Or, does it mean that only adults shall be deemed members of the class, and that there must be an entire fail ure of adult relatives of the classes, before the guardian of an infant of the nearest of kin can come in ? Such a construction would be obviously adverse to the spirit and intent of the statute, and in direct contradiction to its grammatical connection.
    It has no ambiguity—it can reeéive but one construction, which is, that if any class is composed of minors, the general guardians of such minors are entitled to administer in their place, before any of a succeeding class. They stand in the place of their wards. This point being settled, the next question is as to priority between a male and a female of the same class. Section 28 provides for this case, and gives preference to the male. It makes it in effect as if in section 27 the order of priority had been, 1st, to the widow; 2d, to the sons; 3d, to the daughters; 4th, to the father; 5th, to the mother; 6th, to the brothers; 7th, to the sisters; 8th, to the grandsons; 9th, to the granddaughters; and 10th, to other next of kin entitled to share in the distribution, males having priority over females of the same degree of kindred. This is the exact effect of uniting the classification in consecutive order. It seems too plain to admit even of argument, that where a class is composed of infants who- have guardians, these take the place of their wards, and have priority over persons in the succeeding classes. Believing this to be the proper and only fair construction of the statutes defining the priority of right to administer in cases of intestacy, the surrogate properly granted letters to the guardian of Charles L. Petrie, and we ask that his decision may be affirmed, with costs.
    [Fourth Judicial Department, General Term, at Buffalo,
    June 6, 1870.
   By the Court.

The order of the surrogate is reversed, on the ground that by the statute prescribing the order in which the next of kin of an intestate shall be- entitled to letters of- administration, adult daughters are entitled, in preference to the guardians of minor sons.

Section 27 (3 R. S. p. 158, 5th ed.) prescribes the order in which the next of kin shall be entitled to letters of administration in cases of intestacy. It is provided by section 28, that in determining who of a class shall be preferred, males shall be preferred to females. This general provision is controlled by section 32, which declares that letters shall not be granted to minors.

By section 27 it is declared that if any of the several classes mentioned therein be minors, letters shall issue to their guardians. If none of the relatives of the intestate or guardians of minors will accept, then letters are to issue to the creditors of the intestate.

It is quite obvious that guardians are not to be appointed in the same cases in which their wards would be entitled if of full age. If that had been the intention of the legislature it would not have provided that guardians should be entitled after relatives and before creditors.

Independent of the statute, it would seem to us to be most judicious that guardians should only be entitled in the event that there is no adult relative who is competent. (Wickwire v. Chapman, 15 Barb. 302.) The order of the surrogate is reversed, with costs.

Muttm, P. J, and Johnson and Taloott, Justices.]  