
    SURROGATE’S COURT
    In the Estate of Charles Morgan, deceased.
    
      Code of Civil Procedure, section 2643 — Who entitled to receive letters of administration with will annexed under this section — When strangers ma/y he appointed co-administrators.
    
    Where there are two or more persons equally entitled, under section 2643 of the Code, to receive letters of administration with will annexed, the surrogate will appoint that person who ceteris paribus has the largest interest under the will.
    Section 34, title 2, chapter 6, part 2, Revised Statutes, which declares that joint “ administration ” may, with the consent of persons entitled, he granted to themselves and to other persons not entitled, applies to cases of administration with the will annexed.
    
      New York county, August, 1885.
   Rollins, S.

Mary J. Morgan, late executrix of this testator’s estate, died on the third of July last, leaving its assets in part unadministered. Mrs. Frances E. Quintard, decedent’s eldest daughter and a legatee under his will, has applied for the issuance, of joint letters of administration with the will annexed to herself, her husband George W. Quintard, and J ames Rintoul. The right to receive such letters as are here applied for is granted by section 2643 of the Code of Civil Procedure to persons interested in a testator’s estate, according to the following order of priority:

First. To one or more of the residuary legatees who are qualified to act as administrators.

Second. If there is no such residuary legatee, or none who will accept, then to one or more of the principal or specific legatees so qualified.”

The will of this testator contained but one dispositive clause. That clause gave his entire estate “as provided by the laws of the state of Hew York in case of intestacy.” ■ The persons who thus became' entitled to share in the testator’s bounty, and the respective interests that they had in the estate upon probate of the will, were as follows: Mary J. Morgan, widow, thirty-ninetieths; Frances E. Quintará, daughter, twelve-ninetieths ; Maria L. Whitney, daughter, twelve-ninetieths; Bichará J. Morgan, grandson, twelve-ninetieths; Montaigu Morgan, grandson, four-ninetieths; William H. Morgan, grandson, four-ninetieths; Laura L. La Montagne, granddaughter, four-ninetieths; Henry W. Harris, great-grandson, three-ninetieths; Henry H. Wilson, great-grandson, six-ninetieths ; Maria L. Harris, great-grand daughter, three-ninetieths.

It is evident that the above named persons, though their interests under the will 'vary in quantity, are legatees nevertheless of precisely the same grade and character. It cannot be said that any one of them, as distinguished from any other, is a “residuary” or a “specific” legatee. Nor is it true that any one of them, as distinguished from any other, is one of the “ principal legatees.” For the word principal, when read in the light of the context, is evidently not used as a synonym for chief or most important, but has the force and effect rather of the word general, and is meant to be descriptive of all legatees who are neither specific nor residuary. I hold, therefore, that no one among this testator’s living beneficiaries has any absolute legal right, as such, to be chosen in preference to any other as administrator c. t. a. of this estate, except as hereinafter indicated. Of those beneficiaries Mary J. Morgan, Bichard J. Morgan, Montaigu Morgan and Henry H. Wilson are dead. Henry W. Harris and Maria L. Harris are personally incompetent because of their infancy, and any claim that might be made by their guardian is secondary to •the claim of an adult legatee legally qualified (Sec. 33, tit. 2, chap. 6, pt. 2 R. S.; 3 Banks [7th ed.] 2291; Cottle agt. Vanderheyden, 11 Abb. [N. S.], 17). The selection must therefore be made from the persons following, unless all of them waive their claims: Mrs. Quintará, Mrs. Whitney, William H. Morgan and Laura L. La Montagne.

The petition of Mrs. Quintará is not, I understand, opposed by Mrs. Whitney. Mrs. Montagne is not herself an applicant for letters. Mr. W. H. Morgan applies for his own appointment as co-administrator with the petitioner. The practical questions for decision, are therefore, these : 1. Of the persons entitled, shall I appoint Mrs. Quintard, or Mr. W. H. Morgan, or both ? 2. Whoever may be selected among the persons entitled, shall any person not entitled be joined in the administration as prayed for by several of the parties in interest %

And first, as between Mrs. Quintard and Mr. Morgan, the claim of the former is supported by this very important consideration, that she has much the larger interest in the estate.

Schouler, in his treatise on Executors and Administrators (sec. 124), declares that when the selection of an administrator o. t. a. is uncontrolled by statute the rule is to grant letters “ to the claimant having the greatest interest under the will.” Our own statute is founded on a practice which was established by the ecclesiastical courts, and which is thus expounded by Sir John ISfichol in Tucker agt. Westgarth (2 Add., 352): “Where it is discretionary in the court to grant administration to either of two claimants it always decrees it, ceteris pa/ribms, to that claimant who has the greatest interest in the effects to be administered.” (See, also, to same effect, Elwes agt. Elwes, 2 Lee's Cas., 573).

Redfield in his Law of Wills, says (vol. 3, p. 97): “In the English courts of probate the general rule seems to have been to give administration first to the party entitled to the residue of the goods, and among those of equal degree to the one in seniority, other things being equal.” Tried by this test, it is manifest that the claim of the petitioner is superior to that of her rival applicant. Those who have appeared in opposition, and who are themselves legally competent to receive letters, have much less interest under the will than those legally competent who support or approve her application. And while there is on the part of several persons now interested in the estate, including the representatives of Mrs. Charles Morgan, some opposition to Mrs. Quintard’s appointment, except upon certain conditions as to co-administration, which she has not indicated her willingness to accept, it is nevertheless true that her application is favored by a much larger interest than the interest which has declared itself on the side of Mr. W. H. Morgan. I should therefore have no hesitation whatever in granting her petition but for the objection that her relation to a proceeding now pending in the court of appeals, involving the construction of this testator’s will and the ascertainment of the amounts to which his several legatees are entitled thereunder, make her an unfit person to be intrusted with the sole charge of the estate.

As to this objection it may be said in the first place that the facts on which it is founded do not constitute a disqualification under the statute prescribing the qualifications of administrators. She could insist, in spite of it, upon her absolute right to letters if she were, for example, sole residuary legatee, or if the three persons whose statutory status is the same as her own were all dead or were all unwilling to administer.

The standard of incompetency fixed by the written law can alone be applied in passing upon the qualifications of an applicant to whom that law has given priority; and indebtedness to the estate or personal interest in its administration are not of themselves grounds of disqualification (Churchill agt. Prescott, 2 Bradf., 304). I might very likely regard Mrs. Quintard’s relations to the controversy in the court of appeals as sufficient, other things being equal, to warrant the selection in preference to herself of some person equally entitled, against whom that objection could not be urged, if there were any such person in existence. But there is not; and as between Mr. Morgan and herself, if either is to be intrusted with the administration to the exclusion of the other’, I am disposed to give her the preference.

Mow it is not, in my judgment, desirable that letters should issue to the two in conjunction. There is little reason to believe that their counsels would be harmonious, or that their united action would result in measures conducive to the best interests of the state. Besides, if Mrs. Quintará shall become sole administratrix, I cannot think that the weight of her official authority will become practicably oppressive to the other legatees who now object to her appointment. Those objectors are all parties to the proceeding in the court of appeals, and are represented by able and zealous counsel. The issues involved have already been the subject of controversy before a referee, the surrogate and the supreme court, and have given rise to searching and elaborate discussion. Under the circumstances it is extremely unlikely that the parties litigant would or could be helped by the appointment of an administrator in sympathy with their own contention, or would or could be injured by an appointment from the ranks of the opposition.

There remains to be considered the question whether a stranger to an estate can be granted letters of administration o. t. a. jointly with a person entitled to such letters under section 2643 (supra).

It is an every day practice as regards estates of intestates to appoint strangers as co-administrators upon the nomination of the person entitled to letters. This practice is in accordance with the provisions of section 34, title 2, chapter 6, part 2, Revised Statutes (3 Banks’ 7th ed., 2291), which declares that “ administration may be granted to one or more competent persons, although not entitled to the same, with the consent of the person entitled to be joined with such person; which consent shall be in writing and be filed in the office of the surrogate.” Whether this section applies to cases of administration with the will annexed does not seem to have been decided in any reported case, and a doubt is now thrown ■ upon the matter by the fact that in the main the practice and procedure in respect to the appointment of the latter class of officers is now regulated by the Code of Civil Procedure, while as to the administration of estates of intestates the provisions of the Revised Statutes are still in force. This doubt will disappear, however, upon close examination. Section 34 is one of the original provisions of article 2, which from the time of its enactment has borne this .title: “ Of granting letters of administration with the will annexed, and in cases of intestacy.” I agree with surrogate Bradford, Ex parte Brown (2 Bradf., 22), in holding that the term administrator,” as used throughout the whole of title 2 of the sixth chapter, was intended to include administrators with the will annexed, except in cases where the context plainly indicates the contrary. That strangers could be joined in administrations c. t. a. before the Code came upon the statute book I have no doubt. Now, there is nothing in the Code inconsistent with a continuance of that practice, and section 34 is still unrepealed and still forms a part of article 2.

It will be observed that the surrogate has no authority under that section to depart from the rule of selection established by section 2643 of the Code, except to the extent that the person entitled shall consent in writing to the appointment of co-administrators. I cannot, therefore, of my own motion, grant letters to the administrator of the late executrix, however strongly I might he inclined to do so. I may add, that even apart from the restrictions of the statute the surrogate would not be justified in forcing upon a person entitled an association with a stranger not selected by himself (Peters agt. Pub. Administrator, 1 Bradf., 200-207, and cases cited).

Letters may issue to Mrs. Quintard, Mr. Quintard and Mr. Rintoul. If the petitioner shall file a written consent for Mr. Moir’s inclusion, he also may be granted letters.  