
    John Libbey, App’lt, v. Emma J. Mason, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Administration—When letters mat be granted without issuing A CITATION TO NON-RESIDENTS—CODE ClV. PRO., § 2662.
    Where it appeared that the husband of the intesiate was a non-resident, the surrogate was authorized by section 2662 of the Code Civil Procedure to grant letters of administration to the daughter on presentation of her petition, without issuing any citation to the husband. He could exercise this power as well after as before the filing of the petition of the husband.
    2. Same—Residence.
    The non-residence of the husband was fully established by the fact of his having voted regularly in the state of Maine, where he owned a small place and was accustomed to pass most of his time.
    Appeal from an order of the surrogate of Kings county, refusing to grant letters of administration to plaintiff, the husband of the intestate, and granting them to the defendant, her married daughter.
    Facts are sufficiently stated in the opinion of Dykman, J.
    
      Chauncy B. Ripley and A. B. Tappan, for appl’t; Nathaniel B. Cooke, for resp’t.
   Barnard, P. J.

The conclusion of the surrogate that the. petitioner Libbey is a resident of the state of Maine, is well supported by the evidence. The proof shows that he owns a small place in Orono, Penobscot county, in that state; that he has been accustomed to pass most of the time there, and, above all, that he has voted regularly in that state. This is a decisive proof of residence under the laws of Maine as well as under our laws. The evidence also shows that the petitioner Mason resides in Brooklyn, N. Y. A temporary change of domicile for the purpose of educating his children. Dupuy v. Wurtz, 53 N. Y., 556.

The sole question, then, is whether the granting of the letters to Mrs. Emma Mason was proper. The petitioner Libbey was the husband of Lydia 0. Libbey, the deceased intestate. The petitioner, Mrs. Mason, was the daughter (only daughter) of the intestate. The husband by the Revised Statutes had the better right. 3 R. S., 2290, § 27.

By the Code of Civil Procedure, however, it is provided that non-residents of equal or better right than a petitioner to administration upon the estate of a deceased person, need not be cited, and that when it is not necessary to cite a person, letters may be granted to a petitioner. -See 2662.

The petition of Mrs. Mason was presented to the surrogate, and no citation was issued to the husband. Letters to her were, therefore, properly granted under this section, if the husband was a resident of the state of Maine, about which fact there is no doubt. His petition, even if made-before the actual granting of letters to Mrs. Mason, had no relevancy beyond the fact that he declared himself therein to be a resident of Kings county, N. Y. If that was true, then a citation should have been issued to him; but it was not the fact, and the petition failed.

The surrogate’s decree was therefore, right and should be affirmed, with costs.

Pratt and Dykman, JJ., concur.

Dykman, J.

Lydia C. Libbey resided in Brooklyn and died there intestate, leaving Emma J. Mason, her only child, who resided in Brooklyn at the time of her mother’s death and now resides in the city of New York, and John Libbey, her husband, who resides in the state of Maine.

Emma J. Mason presented a petition to the surrogate of Kings county praying for the issuance of letters of administration upon her mother’s estate to her.

A few days subsequently John Libbey, the husband, also presented a similar petition to the surrogate, who thereupon decided that letters should issue to the daughter. From that decree the husband has appealed.

Section 2662 of the Code of Civil Procedure is this: “Every person being a resident of the state who has a right to administer prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents or those who have renounced, or to any or all other persons interested in the estate, whom he thinks proper to cite. When it is not necessary to cite any person, a decree granting to the petitioner letters may be made upon presentation of the petition.

Under this law it was not incumbent upon the surrogate to issue a citation to the husband, and it was entirely within his competence and discretion to issue letters to the daughter immediately upon the presentation of her petition.

The failure to issue letters to the daughter previous to the presentation of the petition of the husband did not. divest the surrogate of his discretion, and he could exercise the same thereafter as well as theretofore.

We do not find that the discretion of the surrogate was improperly exercised, and the decree should be affirmed, with costs, to be paid by the appellant, personally.  