Majority
p. 523New York County. Hon. D. G. ROLLINS, Surrogate. June, 1887. Matter of Roux. In the matter of the estate of Alexander Roux, deceased.
Headnote
Where a testator’s residuary estate is held in trust, and occasion arises for the appointment of an administrator with the will annexed, the beneficiary of the trust is entitled to letters in preference to the trustee. Matter of Thompson, 28 How. Pr., 581 —followed.Petition for letters of administration with the will of decedent annexed.
Coudert Bros., for Alex J. Roux.
Edmond Huerstel, for Isabel F. Roux.
Section 2643 of the Code of Civil Procedure declares the order of priority in the issue of letters of administration, c. t. a., upon a testator’s estate. Some one of the residuary legatees is entitled in preference to any other person. It was decided by the Supreme court of this State, in Matter of Thompson ( 33 Barb., 334 ) that where a testator’s residuary estate is held in trust, and occasion arises for the appointment of an administrator, c. t. a., the beneficiary of the trust is entitled to letters in preference to his trustee.
The decision above cited was affirmed by the Court of Appeals ( 28 How. Pr., 581 ), and must control my
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disposition of the question submitted for decision in the case at bar.
I have signed an order directing the issuance of letters to the petitioner, Alexander J. Roux.