Cobb v. Beardsley , 37 Barb. 192 ( 1862 )

By the Court,

Welles, J.

When all the executors or administrators of a testator or intestate shall die, become lunatic, convict of an infamous offense, or otherwise become incapable of executing the trust reposed in. them, or the power or authority of all of them shall be revoked according to law, the surrogate having authority to grant the letters originally, shall issue letters of administration upon the goods, chattels, credits and effects of the deceased, left unadministered, with the will annexed, or otherwise, as the case may. be, to the widow or next of kin, or creditors of the deceased, or others, in the same manner as directed in relation to original letters of administration. (2 R. S. 78, §§ 44, 45. 3 id. 5th ed. pp. 162, 163.) Administration, in cases of intestacy, shall be granted to the relatives of the deceased, in the following order: First, to the widow; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters; sixth, to the grandchildren; seventh, to any other of the next of kin. (2 R. S. 74, § 27. Id. 5th ed. pp. 158, 159.) When a married woman is entitled to administration, the same may be granted to her husband, in her right and behalf. (2 R. S. 75, § 32, as amended in 1830. Laws of 1830, ch. 321, § 18. 3 R. S. 159, 160, § 32.) When any person shall apply for administration either with the will annexed or in case of intestacy, and there shall be any other person having prior right to such administration, the applicant shall produce, prove and file with the surrogate a written renunciation of the persons having such prior right; If he fail to do so, then citations shall be issued, requiring the persons having prior right, to show cause, &c. (2 R. S. 76, § 35. Id. 5th ed. 160.)

[Monroe General Term, March 3, 1862.

Orra Manchester haring died without a child, father or brother, and his widow having died before the commence- , ment of the proceedings before the surrogate which resulted in granting the order appealed from, it was competent for the surrogate to appoint the husband or husbands of one or more of his sisters. Mrs. Beardsley, the wife of the respondent, was one of his sisters, and on her application it was regular to appoint her husband the administrator, in the present case, without citing any one to appear and show cause, &c. Such citation is only required where there are persons having a prior right to. the sister of the deceased, or other person applying; and in this case it was shown that there were no such persons living, at the time the proceedings were had.

In our opinion there was nothing shown rendering it improper to grant the letters to the respondent.

The order should be affirmed, with costs.

Ordered accordingly.

Welles, E. Darwin Smith and Johnson, Justices.]