in English courts undoubtedly was and still is that, “where the residuary legatee survives the testator and has a beneficial interest, his representative has the same right to administration
cum testamento annexa as the residuary legatee himself, and is therefore entitled to administration in preference to the next of kin, or to legatees.” Williams, Ex’rs, 465, original paging. So strong have been the efforts of those courts that the right of administration should follow the right of property, that in some cases where the statute expressly gave the right of administration to the next of kin the courts have held that the spirit of the act excluded the next of kin where there is a residuary legatee. Id. 464. And the courts in this state were at first inclined to give the same construction to the statute designating who are entitled to administration and administration with the will annexed.
Administrator v.
Watts, 1 Paige, 382;
Administrator v.
Peters, 1 Bradf. Sur. 100; Willard, Ex’rs, 195; Dayt. Sur. 235. But in the case of
Lathrop v.
Smith, 35 Barb. 64 , affirmed in
24 N. Y. 417 , it was held that the next of kin were entitled under the statute to administration, although not entitled to share in the distribution of the estate. And in
Kircheis v.
Scheig, 3 Redf. Sur. 277, the surrogate of New York county, upon the authority of
Lathrop v.
Smith, held the same vray in the case of administration with the will annexed, and the same rule of construction was again applied in
Butler v. Perrott, 1 Dem. Sur. 9. The counsel for Mr. Purdy claims that the case of
Kircheis v.
Scheig, supra, is not authority in this case, because the moving party in that case was the legatee of the deceased residuary legatee, and not the deceased residuary legatee’s executor or administrator, and therefore not within the English rule; and, further, that a different rule applies in cases of administration with will annexed from that of ordinary administration. The only instance that I recall in this state where one occupying a representative capacity is entitled to administration upon another’s estate in the right of the person whom he represents is in the case of a guardian of a minor, and then it is because of a statute giving that right. 4 Rev. St. (8th Ed.) p. 2553, § 33. At the time of the decision of
Kircheis v.
Scheig, in 1878, section 14 of 2 Rev. St. p. 71, was in force, and provided that letters with the will annexed shall be granted in the same manner and under the same regulations as letters of administration in cases of intestacy. This section was repealed by chapter 245 of the Laws of 1880, and provision was made by section 2643 of the Code of Civil Procedure regulating the issuing of such letters, which does not include any provision similar to that just quoted. However, it seems to me that the same reasoning by which Judge Davies, in the opinion in
Lathrop v.
Smith, supra, reached the conclusion that administration must be granted in the order mentioned by the statute, although by so doing it may, in some circumstances, give the letters to one who has no distributive interest in the estate, applies with equal force to this section of the Code, which provides that the surrogate must issue letters to the persons there designated in the order prescribed; and if it shall happen that there were none of the first class, or if there have been such, but who are not, at the time of the application, then the right passes to the next class, and not to the representatives of the deceased of the first class. Letters will therefore be granted Gilbert Brown.