Wickwire v. Chapman , 15 Barb. 302 ( 1853 )

By the Court, Johnson, J.

It is insisted by the counsellor the appellants, that the administration granted to the respondent Chapman is invalid, on the ground that others having a right prior to his wife were not cited, but that the citation was issued to their guardian, appointed before any citation was issued.

The wife of Chapman was a grandchild to the intestate, of full age. The petition shows that there are three of the same degree of kindred, residing out of the state, who are males, but under the age of twenty-one years. All the children of the intestate were duly cited. Had these males, being infants, a prior right over females who are of full age and whose husbands are entitled to administration in their right ? I think not. The statute (2 R. 8. 74, § 27) provides that if any of the persons entitled are minors, administration shall be granted to their.guardians. But if none of the relatives entitled, or the guardians of such as are minors, will accept, creditors may apply and be appointed; and if no creditors apply, then any other person or persons may be appointed who are legally competent.

[Cayuga General Term, June 6, 1853.

Selden, T. B. Strong and Johnson, Justices.]

Section 32 excludes persons under the age of twenty-one years from the right to letters, absolutely. But section 33 provides, that if one of the persons who would be otherwise entitled shall ^ be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons. The result of these various provisions is to give the guardians of infants a prior right over creditors of the estate and other persons having no right to share in the estate, and not over any of the relatives mentioned in section 27, whatever may be the sex or degree of kindred of the minor. It follows that all having prior right were duly cited.

I do not think the objection that the notice was not published in the real state paper was well taken. The proprietors of the paper in which the citation was published were acting under color of an appointment, and at the timé were exercising the functions pertaining to the official character, defacto, and that is, I think, sufficient.

The decree must be affirmed, with costs of the appeal.