
    ESTATE OF WOOD.
    
      N. Y, Surrogate's Court;
    
    
      October, 1891.
    1. Administrator with will annexed,.] By the repeal of the provision of the Revised Statutes (3 R. S. [6th Ed.] p. 74, § 14,) which, after regulating the order of priority in which parties are entitled to letters of administration with will annexed, provided that the issuance of such letters should be “ in the same manner and under like regulations and restrictions as letters of administration in the case of intestacy,” and the substitution therefor of section 2643 of the Code of Civil Procedure, not containing such provision,—the restriction of the Revised Statutes in preferring males to females, still in force in granting letters upon intestacy, is no longer applicable in granting letters of administration with the will annexed.
    
      2. The samel] It seems, other things being equal, the surrogate, in a case where there are opposing claims, would prefer the male to the female in issuing letters of administration with the will annexed.
    3. The same, principal or specific legatees.] A person not mentioned byname in a will but who is entitled to take under it as “ heir ” and “ issue ” of a person named as legatee.-—Held, a “ principal or specific legatee ” under the will within the meaning of Code Civ. Pro. § 2643, subd. 2  and equally entitled to apply for letters of administration with the will annexed—as a person whom the will designated by name as a legatee.
    4. The same; citatio7il] It being within the discretion Of the surrogate to grant letters of administration with the will annexed under Code Civ. Pro. § 2643, subd. 2, to any one of two or more principal or specific legatees, it is not necessary under Code Civ. Pro. § 2644, requiring persons having a prior right to administration to be cited, for one of such legatees in applying for letters to cite the other legatees. The other legatees are only persons interested in the estate, whom the surrogate may require to be notified in his discretion under § 2643, and it is no ground for the revoking of such letters that they were granted without notice to other legatees.
    Petition of Joseph S. Wood for the revocation of letters of administration to Jennie E. Wood with the will annexed of Samuel Wood, deceased, and- for the issuance of letters to the petitioner on the ground of priority.
    Both petitioner and administratrix claimed to be entitled to letters as a legatee under the following provision of the will of testator: “ I hereby direct and require my executors to set apart out of my estate and to securely invest......the sum of 15,000 dollars to pay the income thereof semi-annually to my cousin Stephen Wood, during his natural life and after his decease then to pay the income of said $15,000 to the children of said Stephen Wood who shall be living at the time of his death, and to the issue of such of them as shall be dead, as follows: The income of 5,000 dollars to each of his sons, Martin and Joseph Wood, and the income of 2,500 dollars to each of his daughters Elizabeth Jones, wife of Jones and Mary Baldwin, wife of Francis Baldwin, during the natural life of his son, said Joseph Wood, and on the death of the said Joseph Wood I give and bequeath the said principal sum of 15,000 dollars as follows: $5,000 to said Martin Wood and his heirs, 5,000 dollars thereof to the heirs of said Joseph Wood, 2,500 dollars thereof to the said Elizabeth Wood and her heirs, and 2,500 dollars thereof to said Mary Baldwin and her heirs, but if either of the above named shall die without lawful issue before the death of the said Joseph, then the share of such deceased legatee shall be equally divided among such of the children' of Stephen Wood as shall survive, and their lawful issue per stirpes."
    
    The petitioner was the son of Stephen Wood, the Joseph Wood named in the will who was entitled to the income of 5,000 dollars for life. The petition alleged that the administratrix was not a legatee. She was not, it is true, named in the will, but she claimed, how'ever, as a child of Martin Wood, who had died, to share in the income bequeathed to him during the life of Joseph Wood, and to share in the principal after the death of Joseph Wood, and in addition thereto to be entitled upon the death of Mary Baldwin prior to Joseph Wood, to share in the principal sum of 2,500 dollars.
    
      Treadwell & Catlin, for the petitioner.
    
      Magner & Hughes, opposed.
    
      
      
         3 Revised Statutes (6th ed) p. 74 § 15 [sec 14]. If all the persons named in a will as executors, shall renounce or after summons issued and served as aforesaid, shall neglect to qualify or shall be legally incompetent, then letters testamentary shall issue and administration with the will annexed be granted as if no executors were named in such will, to the residuary legatees, or some or one of them, if there be any; if there be none that will accept, then to any principal or specific legatee, if there be any; if there be none that will accept, then to the widow and next of kin of the testator -or to any creditor of the testator in the same manner and under like regulations and. restrictions as letters of administration in case •of intestacy.
    
    
      
       3 Revised Statutes (6th ed) p. 78 § 32 [sec 28]. When there are several persons of the same degree of kindred to the intestate entitled to administration, they shall be preferred in the following order: First, males to females; second, relatives of the whole blood to those of the half blood ; third, unmarried women to such as are married; and where there are several persons equally entitled to administration the surrogate may in his discretion grant letters to one or more of such persons.
    
    
      
       Code Civil Procedure § 2643, provides,
      If no person is named as executor in the will or selected by virtue of a power contained therein; or if at any time by reason of death, incompetency adjudged by the surrogate, renunciation in either of the methods prescribed in sections 2639 and 2642 of this act or revocation of letters, there is no executor or administrator with the will annexed qualified to act; the surrogate must upon the application of a creditor of the decedent or a person interested in the estate and upon such notice to the other creditors and persons interested in the estate, as the surrogate deems proper, issue letters of administration with the will annexed, as follows : 1. To one or more residuary legatees, who are qualified to act as administrators. 2. 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. 3. If there is no such legatee or none who will accept, then to the husband or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees so qualified. 4. If there is no qualified person entitled under the foregoing subdivisions who will accept, then to one or more of the creditors who are so qualified, except in the counties of New York and Kings the public administrator shall have preference, after the next of kin, over the creditors and all other persons. 5. If there is no qualified creditor who will accept, then to any proper person designated by the surrogate.
    
    
      
       Section 2644. But where a person applies for letters of administration with the will annexed as prescribed in the last section and another person has a right to the administration prior to that of the petitioner, the application must be made by petition unless a written renunciation of every person having such a prior right is filed with the surrogate, and the execution is proved to his satisfaction. The petition must pray that all persons having a prior right who have not renounced be cited to show cause why administration should not be granted to the petitioner. The proceedings thereupon are the same as upon an application for administration upon the estate of an intestate.
    
   Ransom, S.

Application to revoke letters of administration c. t. a. upon the ground that petitioner has a right to the letters prior to that of the respondent, and that they were issued to the latter without notice to the former. The question is, has petitioner such prior right.

Section 14 (part 2, chapter 6, title 2, article 1, 3 Revised Statutes, 6th ed. p. 74), for which section 2643 of the Code of Civil Procedure was substituted, provided for the issuance of letters of administration c. t. a. first to legatees, then to the widow and next of kin of the testator, or to any creditor of the testator, in the same manner and under the like regulations and restriction as letters of administration in case, of intestacy.” Among those restrictions and regulations is that which perfers males to females in case of intestacy, and is contained in section 28, art. 2, tit. 2, chap. 6, part 2 of the Revised Statutes (3 R. S. 6 ed. 78 ; 3 R. S. 8 ed. 2552; Cottle v. Vanderheyden, 11 Abb. N. S., 19). This section is still in force. Section 14 of the Revised Statutes was repealed by chap. 245 of the Laws of 1880, and section 2643 of the Code of Civil Procedure enacted in its stead. This section of the Code establishes the order of priority in which parties are entitled to letters of administration c. t. a., and makes no discrimination between males and females. The order is: 1st. To one or more of the residuary legatees who are qualified to act as administrators. 2d. If there is no such residuary legatee, or none who will accept, then to one or more of the principal 01-specific legatees so qualified, etc.

Each of the parties to this proceeding is a legatee under subdivision 1, paragraph 2, of the will of the testator, both being recipients of the income of trusts, and the respondents being also entitled to share, in a certain event, in the funds held in trust for the petitioner and Mary Baldwin, respectively (Est. of Samuel Wood, Surr. Dec. [1889], 120; Matter of Wood, 5 Dem. 348; Matter of Roux, 5 Id. 523 : Estate of Thompson, 33 Barb. 334, aff’d 28 How. Pr. 58). The yare both legatees within the second subdivison of section 2643, and each was at liberty to apply for letters without citing the other (section 2644, Code Civ. Pro). Had he deemed it advisable, the Surrogate could, in his discretion, have required everybody interested in the estate to be notified of the application (section 2643, Code Civ. Pro). He did not do so in the present case, and the petitioner can have no ground of complaint for the omission. If the petitioner had been a party to the proceeding in which the letters were issued, it would have been within the discretion of the court to grant them to either or both parties as the circumstances would warrant. Other things being equal, the court, in a case where there are opposing ¡claims, would prefer the male to the female in issuing the letters.

Application denied.  