
    In the Matter of the Estate of Celeste J. Payne, Also Known as Celeste M. Johnson, Deceased.
    Surrogate’s Court, Nassau County,
    July 10, 1973.
    
      Edmund J. Kane for petitioner. Jeffrey D. Forchelli, guardian ad litem.
   John D. Bennett, S.

This is a petition for letters of administration by the father of the decedent. Decedent died survived by her husband who would normally have a prior right to letters; however, under SCPA 707, the husband is ineligible to receive letters, being an infant. Pursuant to SCPA 1001 (subd. 4, par. [a]), when a distributee is an infant and has a prior right to letters, the court may grant letters to his guardian if he is eligible and qualifies.

The guardian ad litem appointed on behalf of the husband ■states the latter only has a passive interest in this estate. The petitioner alleges that the decedent, his daughter, was separated from her spouse and resided with and was supported by him. There is, however, no allegation that the surviving spouse is disqualified to act.

Apparently, this estate is close to if not insolvent since the petitioner indicates that it is only his estimate that assets will be sufficient to pay the funeral bill (without even mentioning administration expenses which would be prior). The guardian ad litem argues that, since the estate is concededly very small, the petitioner, as decedent’s father, will in no event take a share ” in this estate — his interest only commencing after $25,000 (EPTL 4-1.1, subd. [a], par. [4]) — and accordingly he may not be appointed administrator. While SCPA 1001 merely requires that letters issue in the proper order to persons who are distributees,”' the definition of a “ distributee ” is a person entitled to “ take or share ” in the estate (EPTL 1-2.5). Accordingly, the petitioner has no status as a distributee to be appointed administrator (Matter of Vertuccio, N. Y. L. J., June 25, 1959, p. 9, col. 3).

The husband will be given until July 27, 1973 to qualify as administrator through a guardian appointed for him. If no such application for letters on behalf of a guardian is made by that date, letters will issue to the Public Administrator or to the petitioner as a creditor if, in the discretion of the court, the Public Administrator is permitted to renounce upon a motion made by him for such relief (SCPA 1003, subd. 3).  