
    New York County. Surrogate.
    Hon. D. G. ROLLINS,
    January, 1883.
    Batchelor v. Batchelor. In the matter of the application for the appointment of an administrator with the will of William A. Batchelor, deceased, annexed.
    
    An application for letters of administration, with the will of a decedent annexed, made by one not primarily entitled, must, under Code Civ. Pro., § 2644, he by a petition praying for the appointment of petitioner, and for a citation to those having a prior right, to show cause against such appointment; and the citation must be addressed to, and served upon those having such right, who have not renounced.
    Petition by Mary A. Batchelor, for a decree granting letters of administration, with the will of decedent annexed, to the public administrator of New York county; opposed by William A. Batchelor, one of decedent’s next of kin. The facts appear sufficiently in the opinion.
    Marshall & Benson, for petitioner.
    
    Bagley & Thain, for William A. Batchelor.
    
   The Surrogate.

In February last, Mary A. Batchelor, executrix of one Charles Batchelor, deceased, and claiming to be, as such, a creditor of decedent’s estate, presented to the Surrogate a petition, alleging that the will of decedent had been admitted to probate in the state of Maryland, and that an exemplified copy thereof had been filed in this court. The petition also averred that testamentary letters had been issued in Maryland to decedent’s widow, Lucretia A. Batchelor; that there were unadministered assets of the estate in the county of New York; that decedent had left him surviving several next of kin and heirs-at-law, whose names were set forth; that Lucretia A. Batchelor had been cited to appear and qualify as executrix, or show cause why she should not be deemed to have renounced; that she had failed to appear, and that thereupon an order had been entered declaring her to have renounced.

The petition then prayed for a citation to the said next of kin and heirs-at-law, to appear and show cause why letters of administration with the will annexed, on decedent’s estate, should not be issued to the public administrator of this county.

A citation was thereupon issued, which, in an important particular, failed to conform to the prayer of the petition; for it cited the parties to show cause why letters of administration with the will annexed should not be granted to the petitioner herself.

This citation was returned in April. It is claimed that the service upon some of the parties was worthless, but it is unnecessary to pass upon that contention, for reasons which will presently appear. The petitioner seems to have thought fit to abandon this proceeding, and, in June, 1882, she asked and obtained leave to withdraw the petition above referred to, and to file another in its stead.

This new petition contained allegations similar to the other, and added that the various persons originally named as the next of kin and heirs-at-Iaw had, with the single exception of William A. Batchelor, failed to appear on the return day of the citation. It prayed for a citation to William A. Batchelor (but to no other persons whomsoever), to appear and show cause why letters of administration with the will annexed should not be granted to the public administrator. A citation was issued in strict conformity with the second petition and seems to have been duly served.

Upon the proceedings above recited, lam not warranted in granting either original or ancillary letters of administration with the will annexed.

1. Not ancillary letters.

The Code prescribes, by §§ 2697, 2698 and 2699, to whom such letters shall issue, and what steps shall be taken to procure their issuance. These steps have not been taken in the present case, and neither the petitioner nor the public administrator, in whose behalf she applies, shows any title to letters ancillary.

2. If it be assumed that, in such a case as the present, a grant of original letters might lawfully be made upon a proper application, it is plain that they cannot be issued upon the papers now before me. Sections 2643 and 2644 of the Code, establish the procedure by which the authority of the court in this regard must be set in motion. The former section prescribes the order of priority of right to the letters. The latter provides that an application for their issuance must be made by petition, unless every person having a prior right has renounced, and that such petition must pray that all persons, having a prior right and who have not renounced, be cited to show cause why administration should not he granted to the petitioner. In the present case, the applicant asks that a citation issue to the respondent, William A. Batchelor, to show cause why letters should not be granted to the public administrator, and the citation corresponds with the petition.

The applicant, if she desired to initiate these proceedings, should have asked for her own appointment, and cited the public administrator, and such other party or parties as were entitled, in priority, to letters of administration with the will annexed. The petition must be dismissed.

Ordered accordingly.  