
    Sylvanus B. Sayre, appellant, v. Edward Sayre, respondent.
    X. Where there is no husband or widow, administration must be granted to-the next of kin of the intestate, if any of them are fit and competent and will' accept.
    2. Where one of several next of kin applies for administration, the surrogate should not, in any case, grant administration until proof has been made that ten days’ notice of the application has been given to the others.
    On appeal from án order of the orphans court of the county* of Morris.
    
      Mr. John J. Hubbell, for the appellant.
    
      Mr. George T. Werts, for the respondent.
   The Vice-Ordinary.

This is an appeal from an order of the orphans court of the-county of Morris. The facts material to the controversy are the-following: Eliza B. Sayre, a resident of Morris county, died intestate on the 3d day of October, 1890. .The appellant and: respondent are her sons and her only next of kin. No application for administration was made until February 3d, 1891, more-than one hundred and twenty days after the intestate’s death,, and then the respondent applied, and two days thereafter the surrogate granted letters to him without notice to the appellant, and, so far as appears, without his knowledge. The regularity of the action of the surrogate, in appointing the respondent without notice to the appellant, was challenged by appeal to the-orphans court, and that court, by its order, refused to revoke the-appointment. This is the order that is under review, and the-question presented for decision is, whether a surrogate may law•fully, in any case, appoint one of several next of kin administrator of an intestate’s estate without notice to the others.

Where there is no husband or widow, administration must be granted to the next of kin, if any of them are fit and competent and will accept. The statute so directs. Rev. p. 728 § 28. This is the construction which the present surrogate-general has ■given to the statute. Donahay v. Hall, 18 Stew. Eq. 720, 722. In a ease where there are several next of kin, the course which the surrogate must pursue in granting administration'is plainly pointed out by the first paragraph of the rules of the orphans court. That paragraph, so far ,as its provisions are pertinent to ■the question now before the court, provides that an application for letters of administration must be in writing and verified by ajffidavit; that it must state the names of the heirs and next of kin of the deceased, so far as the same are known, with their residence or post-office address, and the manner or degree in which they severally stand- related to. the deceased; and where such application is made by one of several persons equally entitled to receive letters of- administration, the person making the application must produce to the surrogate proof that at least ten days’ notice of his application has been given to the other next of kin or parties entitled by law to administration. Dick. Pro. Ct. Prac. 19. This language appears to me to be so lucid as to make the rule its own expositor. It says plainly and distinctly, as I understand it, that in case one of several next of kin apply for administration, the surrogate shall, in no case; grant administration until proof has been made that ten days’ notice of the application has been given to the others. The reason why the applicant is required to set forth in his application the names and residences of the next of kin of the deceased is, that the surrogate may be thus furnished with the means of knowing, before he acts, that the persons entitled to notice of the application have had it. That part- of the rule which requires an applicant to give notice to all persons standing in equality of right with him, was undoubtedly intended to make a grant of administration by a surrogate dependent upon the observance ■of that great principle of justice which declares that, in every proceeding of a judicial nature, it is essential to its validity that the persons whose .rights are to be affected should be a party to-the proceeding, and have an opportunity of being heard. As the case now stands, it would seem to be entirely clear that the-right of the appellant to administer the estate of his mother is, in all respects, equal to that of the respondent, and this is,, therefore, just the sort of a cáse that the rule was intended to-regulate. Where there are several persons possessing an equal right to administer, the evident design of the rule is to prevent a grant of letters by the surrogate to any one of them until all have had an opportunity to be heard.

The ninth section of the “Act concerning executors and the administration of intestates’ estates” (Rev. p. 397), authorizes-the surrogate, in case any person dies intestáte within this state, and none of the persons entitled to administer upon his estate shall claim the same within fifty days after his death, to grant letters of administration upon his estate to any fit person. The statute gives no directions on the subject of notice, but the language of the rule just considered plainly covers such a ca-se.. And it has already been decided that the rule in question applies-to such a case, and that a valid grant of administration cannot be made under this statute without notice. Gans v. Dabergott, 13 Stew. Eq. 184, 187.

The order appealed from must be reversed, and the letters-granted to the respondent must be revoked. The appellant is-entitled .to costs against the respondent, both in this court and im the court below.  