In re Murphy , 87 Misc. 564 ( 1914 )

Schulz, S.

The petitioner, the mother of the decedent, 'applies for letters of administration, and presents with her petition a renunciation in the usual form executed by the father of the decedent. The latter left him surviving in addition to his mother, his father, two brothers and a sister and no widow, ■child or descendant. The father, therefore, takes the whole personal estate. Decedent Estate Law, being Laws of 1909, chap. 18, constituting chap. 18, Consol. Laws, § 98, subd. 7.

Administration in case of intestacy must be granted to the persons entitled to take or share in the personal property who are competent and will accept the same in the order specified in section 2588 of the Code of Civil Procedure, Under that section, the father of the decedent is the only person entitled to have letters granted to him by reason of his right to share in the estate. Matter of Elder, 87 Misc. Rep. 79. By the same section it is provided that administration may be granted to a competent person not entitled upon consent of all the persons entitled to take or share in the estate who are within the state and competent, which consent must be in writing and filed in the office of the surrogate.

The father being the only person entitled to take or share in the estate now under consideration, and being within the state and competent, may, by his consent in writing filed with the surrogate as provided by this section, consent to the appointment of a competent person. The renunciation of the father above referred to does not name any person, contains no consent that any one be appointed, and hence is not a compliance with this section, in my opinion. If the mother also had a right of appointment as administratrix, and the difference between that right and the right of the father were one of priority only, then. the renunciation of the father having prior right would, without any consent on his part, enable the mother to have letters issued to her: but here no right exists in the mother, except such as may be created through the consent of the father and hence his consent to her appointment is indispensable. The provision referred to is new and the revisers’ note states that it “ is intended to allow competent and resident parties who take, to consent to have an outsider appointed,” an “ outsider ” being, I assume, any person not entitled to share in the decedent’s estate. The mother may, therefore, be appointed if the provisions of the section are complied with. The application upon the papers thus far submitted is, therefore, denied, but will be granted if the father files a consent such as is referred to in the section of the Code above cited.

Decreed accordingly.