In re Wood's Estate — 17 N.Y.S. 354

Majority

p. 354

In re Wood’s Estate.

(Surrogate's Court, New York County.

October 28, 1891.)

Headnote

1. Administrators with the Wild Annexed—Appointment.

3 Rev. St. (6th Ed.) p. 78, § 28, (still in force in 8th Ed. p. 2552,) providing for letters testamentary in cases of intestacy, prefers males to females. 3 Rev. St. (6th Ed.) p. 74, § 14, (repealed by Laws 1880, c. 245,) provided that letters of administration with the will annexed should be issued under like regulations and restric-tions as in case of intestacy. Code Civil Proc. § 2643, enacted in place of said section 14 of the Revised Statutes, provides that letters with the will annexed shall be issued to certain specified classes of persons in the order named, but contains no other restriction. Ñeld, that the restriction preferring males to females no longer applies to letters of administration with the will annexed.

2. Same—Legatees.

Testator, after disposing of a life-estate in a fund, bequeathed the income of the fund to M. and others, and the issue of such as should be dead, to be paid to them during the life of J., and directed the fund to be distributed among such beneficiaries after the death of J. Meld, that a child of M., after M. ’s death, was a legatee, though not named in the will, and was entitled to apply for letters of administration with the will annexed, under Code Civil Proc. § 2643, which provides that such letters may be issued to a “principal or specific legatee. ”

8. Same—Preference of Males.

Other things being equal, the court, in a case where there are opposing claims, will prefer males to females, in issuing letters testamentary with the will annexed, though the statute (Code Civil Proc. § 2643) does not require such preference.

Proceeding by Joseph S. Wood to revoke letters of administration with the will annexed of Samuel Wood, deceased, theretofore issued to Jennie E. Wood, and to procure letters to be issued to himself, on the ground that he was entitled to priority, in that he was named as a legatee in the will, and that Jennie E. Wood was not. The portion of the will on which the rights of the respective parties to this controversy were founded was paragraph 2, subd. 1 thereof, which is as follows: “I hereby direct and require my executors to set apart out of my estate * * * $15,000, 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 to each of his sons, Martin and Joseph Wood, and the income of $2,500 to each of his daughters, Elizabeth Jones * * * and Mary Baldwin, * * * during the natural life of his son, said Joseph Wood; and, on the death of the said Joseph Wood, 1 give and bequeath the said principal sum of $15,000 as follows: $5,000 to said Martin Wood and his heirs, $5,000 thereof to the heirs of said Joseph Wood, $2,500 thereof to the said Elizabeth Wood and her heirs, and $2,500 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. ”

Petitioner was the Joseph Wood named in the will as one of the sons of Stephen Wood. Jennie E. Wood was a daughter of Martin Wood, who had died. Said Martin Wood was also named in the will as a son of testator’s cousin Stephen Wood. Jennie E. Wood claimed that, though she was not named in the will, she was entitled to take under it as á daughter of said Martin, deceased.

p. 355

For other reports of litigation arising under this will, see 30 Hun, 82 ; 8 FT. E. Eep. 387; 7 FT. Y. Supp. 836; 8 H. Y. Supp. 884; 23 FT. E. Eep. 1151.

Treadwell & Catlin, for petitioner. Maguer & Hughes, for respondent.

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, pt. 2, c. 6, tit. 2, art. 1, 3 Rev. St. (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 restrictions as letters of administration in case of intestacy.” Among those restrictions and regulations is that which prefers males to females in case of intestacy, and is contained in section 28, art. 2, tit. 2, c. 6, pt. 2, of the Revised Statutes. 3 Rev. St. (6th Ed.) p. 78; 4 Rev. St. (8th Ed.) p. 2552;^[1] Cottle v. Vanderheyden, 11 Abb. Pr. (N. S.) 19. This section is still in force. Section 14 of the Be vised Statutes was repealed by chapter 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 admins trati on c. t. a., and makes no discrimination between males and females. The order is: First, to one or more of the residuary legatees who are qualified to act as administrators; second, if there is no such residuary legatee, or none who wdll accept, then to one or more of the principal or specific legatees so qualified, etc. Each of the parties to this proceeding is a legatee under subdivision 1, par. 2, of the will of the testator; both being recipients of the income of trusts, and the respondent being also entitled to share, in a certain event, in the funds held in trust for the petitioner and Mary Baldwin, respectively. In re Wood's Estate, Surr. Dec. 1889, p. 120; In re Wood, 5 Dem. Sur. 348; In re Roux, Id. 523; Estate of Thompson, 33 Barb. 334 , affirmed 28 How. Pr. 58 . They are both legatees, w'ithin the second subdivision of section 2643, and each was at liberty to apply for letters without citing the other. Section 2644, Code Civil Proc. 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, Id. He did not do so in the present ease, 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 the 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.

1 4 Rev. St. (8th Ed.) p. 2558, § 28, is as follows: “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. ”

Cases cited

In re the Estate of Thompson 33 Barb. 334 N.Y. Sup. Ct. 1861-02-04 p. 355