
    Matter of the Administration of the Goods, Chattels and Credits of Charlotte M. Maccaffil, Deceased.
    (Surrogate’s Court, Westchester County;
    December, 1907.)
    Wills — Interpretation and construction — Administration of estate, etc.— Rules and implications — Appointment of executor where will relates to real estate only.
    Executors and administrators — Appointment and qualifications of personal representatives, etc.— Right to administer: In general — In cases of intestacy — What is intestacy; Secondary, special or qualified administration — With will annexed — When will relates to real estate only.
    Where' a will relates only to real property the executor therein named has the right to administer the unbequeathed personal estate of the testatrix.
    The naming of an executor in a will specifically devising real estate only and providing that, in case the executor named should be at testatrix’s death or become a nonresident, he should be allowed to act as executor without giving bonds evidences the testatrix’s intention that the executor should administer her unbequeathed personal estate, and the court will lean towards upholding testatrix’s own selection rather than appoint one whom she did not select.
    The word “intestacy”, as used in section 2660 of the Code of Civil Procedure, providing when letters of administration shall issue in cases of intestacy, refers to the person and not to specific property.
    If the executor in such case should not have the management of the estate it should then pass to an administrator with the will annexed appointed as provided in section 2643 of the Code of Civil Procedure, and the husband’s application for letters of administration, as if his wife had died intestate, will be denied.
    Petition for the revocation of letters testamentary and for the grant of letters of administration. The opinion states the case.
    John P. Duff (William L. Snyder, of counsel), for petitioner.
    Crocker & Wickes, in opposition.
   Millard, S.

Charlotte M. Maccaffil died in the county of Westchester, leaving a last will and testament, under and by virtue of the provisions of which she gave and bequeathed, certain real estate in the city of Mew York to her brother-in-law, Wilbur Harrison Kirkham, to be held and enjoyed by him during the term of his natural life, and after his death gave and devised the same to his son, for the term of his natural life, and after his death to his lawful issue and their heirs absolutely.

Said will also provided that, in case her said nephew should die leaving no issue, then the property was to be otherwise disposed of as in said will set .forth. She then appointed her said brother-in-law, Wilbur H. Kirkham, as executor of her last will and testament and revoked all former wills which she at any time made.

This will was offered for probate before me and the testimony of the subscribing witnesses taken and letters testamentary issued, and now a motion is made on the part of the attorney for the petitioner to revoke the letters testamentary, so granted to said executor named in said will, and for the issuance of letters of administration upon the estate of said Charlotte M. Maccaffil, claiming that the said will fails to dispose of any personal property, hut is a'valid will only of real estate, and that said Charlotte M. Maccaffil died intestate as to her personal property, and that letters of administration should, therefore, be granted to "her husband, Howard It. Maccaffil, who makes the petition and application therefor.

In the first place, as a matter of public policy, it does not seem to me that the orderly administration of an estate should be committed to two persons, part to one called an executor and part to another called an administrator; but, on the contrary, the use of ordinary common sense and good judgment requires that one person should administer the estate and not two, who, as in this case, are apparently unfriendly one to the other. The duties of an executor or administrator are apparently the same. An executor is named by the deceased to administer an estate, while an administrator is the person provided by statute to act in the event of the deceased not making any nomination, so that the difference between an executor and an administrator is largely one in name only.

In construing all wills, it should be the duty of the court to give force to every provision thereof as far as possible; and, in doing this in this case, there are two things which are absolutely without force or significance unless' the executor has some power other than the petitioner herein would admit. It is claimed by the petitioner that the appointment of the executor is mere surplusage; that the will disposes of the real estate without the intervention of the executor, and e 3 that the parties to whom it is devised take it by reason of the provisions of the will. It is admitted by the attorney for the executor named in the will that this appointment would be surplusage unless there was something for the executor to do.

It was held in Wager v. Wager, 89 N. Y. 161, 166, that, if there is any part of an estate that is not effectually disposed of by the will, the executor holds it in trust for those who are entitled to it under the Statute of Distribution,” and so, in this case, the executor having been named in the will and the personal property being undisposed of, it is my opinion that the executor has the right to administer the personal estate by paying the debts and distributing the balance among the next of kin entitled to it by law.

There are two things in this will itself which show the intention of the testatrix to have the executor named therein administer her estate.

First.— She must be presumed to know the law and the fact that .she names an executor, who could have nothing whatever to do with the specifically devised real estate, as is conceded by all parties, is a clear evidence of her intention that he was to administer the personal property, otherwise he would have nothing whatever to do; and

Second.— The further provision of the will, “ I direct that in case he (referring to the executor named) at my decease shall be or become a nonresident of the State of Mew York, he shall be allowed to act as such executor without giving bonds,” again evidences this intention. What possible thing would there be for this executor to do, unless he was to administer the personal estate; and what act did the testatrix contemplate when she used this language? I am convinced from these provisions of the will that the testatrix intended to have the executor named therein administer her personal property; and I think it should be the duty of the court to lean toward upholding the testatrix’s own selection rather than the appointment of one whom she did not select, although she had that opportunity, and whom the law by chance would appoint to administer the estate if no executor were named.

Section 2660 of the Code in providing where letters of administration shall issue says, “In cases of intestacy.” The word “ intestacy ” as used in this connection refers to the person and not to specific property. This is further evidenced by the language of section 2662 of the Oode which expressly states that no letters of administration shall issue until it is proved “ that the decedent left no will.” This condition the petitioner in this case could not fulfill; and I am sure that, if it was intended to allow the appointment of an administrator of unbequeathed assets, the provisions of the Code would be amended and would contain in addition to the above statement or assets unbequeathed by such will ” or other words or statements showing that this alone was necessary.

This same doctrine has been held in Matter of Haughian, 37 Misc. Rep. 457.

It also seems plain that, if it was necessary to do anything beyond appointing the executor named in the will and the issuance of letters testamentary to him, the appointment of an administrator with the will annexed would be the proper practice rather than an administrator, as asked for here.

The provisions of section 2643 of the Code provide that: “ 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 twenty-six hundred and thirty-nine and twenty-six hundred and forty-two 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 of the decedent, or having a lien upon any real property upon which the decedent’s estate has a lien, 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: * * *

Third.— If there is no such legatee or guardian, 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.”

It will thus appear plain that, if the executor here should. not have the management of this estate, it should then pass to an administrator with the will annexed, who would be appointed as provided in this section, and that the applicant here, the husband of the deceased, would only get it after all those preferred by this statute had failed to qualify or waived their right to the appointment.

I have considered in arriving: at this conclusion the memoranda yubmitted to me, including all the English cases therein referred to, and I do not believe that any of them is in conflict with the law as I have attempted to lay it down in this proceeding. For every reason, including the proper and speedy administration of the estate, as well as giving respect to the wishes of the testatrix, I am convinced that the letters testamentary should be issued to the executor named in the will, and that the application for letters of administration upon the'estate should be denied, as I am satisfied that the granting of such letters would tend to create a-confusing condition of affairs without serving any good purpose.

Decreed accordingly.  