
    John Libbey, App’lt, v. Emma J. Mason, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    Administration—When letters mat be granted without issuing a citation to non-residents—Code Civ. Pro., § 3662—Practice— Jurisdiction.
    A non-resident husband was omitted from the citation on application for letters, by virtue of the clause of the Code of Civil Procedure, section 2662, which provides that “non-residents, though of equal or better rights to the petitioners, may, in the discretion of the surrogate, be omitted from citation.” Before hearing on a petition for letters, the non-resident husband intervened, thus making himself a party. Held, that although under the last clause of the section which provides that “where it is not necessary to cite any person, a decree granting to the petitioner letters may be made upon the presentation of the petition;” the surrogate may act without a citation to the non-resident citizen, -and disregard his right because he is not present to assert it, yet, when, .although not cited, the non-resident appears before the issue of letters and prosecutes his claim and stands upon his right, the surrogate may not deny it. His right is unimpaired by the discretionary omission to cite him, if in fact he does appear before the actual grant of letters.
    
      Appeal from a judgment of the supreme court, general term, second department, affirming a decree 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.
    
      Chauncey B. Ripley, for app’lt; N. B. Cooke, for resp’t.,
    
      
       Reversing 4 N. Y. State Rep., 840.
    
   Finch, J.

On the 14th of February, 1886, Lydia 0. Lib-bey, a resident of Brooklyn, in this state, died, leaving her surviving her husband, John Libbey, who resided in the state of Maine, and her daughter by a former husband who is the respondent, Emma J. Mason. On the 11th of March following she presented to the surrogate of Kings county a petition asking to be appointed administratrix of her mother’s estate. No citation to the non-resident husband was directed to be issued, but on the 15th of March, 1886,, and while the prior proceeding was pending and undetermined, he appeared before the surrogate and presented his petition to be appointed administrator, and claiming priority of right. The two proceedings were then practically consolidated and heard together, and resulted in an order or decree granting letters to the daughter and denying them to the husband. From that order he appealed to the general term, where it was affirmed with costs against the: husband. That affirmance occurred in December of 1886, and the order was entered by the successful party, and. notice of that entry served upon the husband’s attorney. Notice of taxation of costs was given for January 6 th, and-ad journed from time to time until January 27th, on which day the attorney for Mrs. Mason failed to appear before* the clerk, and notice of appeal from the order and decree-of the surrogate was served by Libbey. Thereafter the-costs were taxed, but under an order made by the special term requiring it to be done nunc pro tune, and as of January 27th, the date of. the appeal, and without prejudice to-that appeal.

The appellant is now met by a motion to dismiss • his appeal on the ground that it was prematurely taken. It is said, that upon the decision of the general term a judgment, must be entered and since this appeal was from its order it was premature and section 2585 of the Code is relied upon.. The contest before the surrogate was in a special proceeding which was brought to the general term by an appeal, and cotild only terminate in an order. The section referred, to speaks of the judgment or order and perhaps is somewhat confused, but does not alter the explicit definitions of the Code. There was no room for mistake as to the decision appealed from and the appeal was not premature.

Mason in reliance upon section 2662 of the Code. We have.•already twice decided that no appeal of the priority of right ■dictated by the Revised Statutes was intended or effected by that section, and that such priority of right was not lost by the fact of residence in another state if the petitioner was a citizen of the United States. Matter of Page, 107 N. Y., 266; Matter of Williams, 111 id., 680. Avery excellent statement of the reasons for denying such' repeal were given in the general term opinion in the latter case.

Section 27 of the Revised Statutes which designates the ■order of administration, and fixes the priority of right imposes no condition of residence within the state. So much is conceded; but an effort has been made to argue out such -a condition as inferentially imposed by other terms and provisions of the statute, and especially by those which relate "to ancillary letters.

That inference, however, is effectually rebutted by the terms of section 32 which dictates the persons to whom letters shall be refused, whatever may be their relation to the deceased. Among these is enumerated, “a person not a -citizen of the United States unless such person reside within "this state.” The plain inference and obvious meaning is "that non-residence excludes only when the claimant is not •a citizen of the United States, but where that citizenship •exists the non-residence is immaterial, and has no effect upon the priority of right.

The rule is not changed by section 2662 of the Code, which does not repeal'by implication the right of priority .given by the Revised Statutes. We so held in The Matter of Page (supra). That section gives to the surrogate a discretion to omit a citation to non-residents although having a prior right. The only reason assigned is that ‘c in general the delay which a citation in such a case would produce is .unnecessary.” Nevertheless, a judicious surrogate, armed with this destructive discretion, will rarely shut out the Írior right of an American citizen living in a sister state, ecause some time is essential to give it1 recognition and •protection.

But it is upon the final clause of the section that the .argument for repeal is mainly founded. That reads; where it is not necessary to cite any person a decree granting to the petitioner letters may be made upon pre,-sentation of the petition.” Doubtless this clause was only intended to mean that where the applicant had the first and paramount right, and none existed prior or equal to his, •the surrogate might act at once, because citations to any -one would be needless. But this innocent meaning is carxied beyond its purpose by the phraseology employed, and lhas led to the logic that since it is not necessary to cite a non-resident whatever his priority of right the surrogate may disregard that right, and it is thereby lost. That he may disregard it seems to be true: that it is thereby lost, or ceases to exist, or has suffered a repeal, does not at all follow. It remains unchanged. The remedy for its enforcement has been modified, but the right itself has not •been destroyed. The surrogate may act without a citation to the non-resident citizen, and disregard his right because lie is not present to assert it. Whether the letters so issued, although regular under the Code, would stand against an application for their revocation by the nonresident citizen having the prior right, it is not necessary now to determine. But where, although not cited, the nonresident appears, before the issue of letters, and presents his claim and stands upon his right, the surrogate may not deny it. In this case the omission to cite Libbey was immaterial for he appeared, and was heard in opposition to the claim of Mrs. Mason before any appointment whatever was made, and the question of priority of right was directly involved. The order appealed from both grants the application of the daughter and denies that of the husband. The surrogate was required to decide between the two. No statutory reasons for rejecting the husband’s administration were given, and letters should have been awarded to him.

The order of the general term and of the surrogate should be reversed and case remitted to the surrogate, that letters may be issued to the husband, John Libbey, with costs, personally against the petitioner, Mrs. Mason.

All concur.  