Citation Numbers: 43 Barb. 417
Judges: Ingalls
Filed Date: 12/5/1864
Status: Precedential
Modified Date: 1/12/2023
By the Court,
The material question to be decided upon this appeal is, whether the surrogate decided correctly, that the respondent was by law entitled to such letters of administration, in preference to the appellant, as such guardian. The revised statutes (vol. 2, page 71, § 3, Edm. ed.) expressly declare that all persons under the age of twenty-one years are incompetent to serve as executors. The same statute (p. 77, § 32,) provides that no lettei-s of administration shall be granted to any person who is under the age of twenty-one years. Section 14 provides as follows: “If all the persons named in the will as executors shall renounce, or after summons issued and served as aforesaid shall neglect to qualify or shall be legally incompetent, then letters testamentary shall issue; and administration with the will annexed be granted, as if no executors were named in such will, to the residuary legatees, or some or one of them, if
In this case, there was no executor living at the death of the testator; and the legatees named in the will are all minors, and as such incompetent to act either as executors or administrators in any case.
Section 33 of the same statute provides: “If any person who would otherwise be entitled to letters of administration, as next of kin, or to letters of administration with the will annexed, as residuary or specific legatee, shall he a minor, such letters shall he granted to his guardian, being in all other respects competent, in preference to creditors or other persons.” There are no residuary or specific legatees named in the will of Joseph C. Mattice, and all the legatees are minors and no creditor applied for such letters. The words “other persons” have received judicial construction. In Wickwire v. Chapman, (15 Barb. 304,) Johnson, J. after alluding to various provisions of the statute, including section 23, remarks, “The result of the various provisions is to give the guardian 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
Peckham, Miller and Ingalls, Justices.]