#### In the estate of Sarah L. Powell, deceased.

*(Surrogate’s Court of New York County,*

*Filed October*11, 1886.)

1. Will — Probate of — Costs.

Where upon proceedings for the probate of a will the trial was not unreasonably delayed by a contestant and no witnesses were examined except the subscribing witnesses to the will, the court declined to charge the contestant with costs.

2. Letters op administratioN with the will ANNEXED — To whom issued — Code Civ. pro. § 2643.

Where a will appointed no executor or executrix and there was no residuary legatee under the will, there being principal and specific legatees who were applicants for letters of administration, and tbe testimony showing that the testatrix had declared a preference that a certain one should manage the estate, it was *held*that, other things being equal the preference might properly be allowed to have weight.

*Win. U.*Sage, atty. for proponent; *John W. Weed,*general guardian.

Rollins, S.

I. A decree may be entered admitting to probate the paper heretofore propounded as this decedent’s will.

II. I decline to charge the contestant with costs. The trial has not been unreasonably delayed, and no witnesses have been examined except the subscribing witnesses to the will. Within my recent decision in Matter of Henry *(ante p.*344) justice does not require that the contestant should be personally charged with the proponent’s costs.

III. The will appoints no executor or executrix.

By the provision of section 2643 of the Code of Civ. Pro., letters of administration *o. t. a.*must issue in such a case.

*First'.*To one or more of the residuary legatees qualified to act, and in default, etc.,

*Second.*To one or more of the principal or specific legatees so qualified.

There is no residuary legatee under this decedant’s will. The principal and specific legatees are Anna M. Smith, Mary C. Case, Iiouise C. Wilson, Sarah L. Smith and Isabella C. Fish. Anna M. Smith and Mary C. Case are rival applicants for letters, Which of the two has the greater interest in the estate is *349not altogether clear. If there was any considerable disparity in the extent and value of their respective claims as legatees of the effects to be administered, that circumstance might be regarded as controlling (*Quintard*v. Morgan, 4 Dem., 168).

Counsel for Mrs. Case has presented affidavits made by the two subscribing witnesses, Hattie A. Hatch and Agnes F. Smith. The former who is the manager of Hahnemann Hospital, in this city, drew the will. She declares that the importance of inserting a provision for the appointment of an executor did not occur to her, but that the testatrix expressly stated that she wished nobody except her niece, Mrs. Case, to have anything to do in the management of her estate. The other subscribing witness, Agnes F. Smith, also bears testimony to the fact that the decedent expressed a wish, that to Mrs. Case should be entrusted the enforcement of the provisions of this will.

I am not aware that in any reported case the selection of an administrator *c. t. a.*from among several persons having equal rights under the statute has been made to depend upon the declared preference of the testator. But I think that, other things being equal, such preference may properly enough be allowed to have some weight, just as in the selection of a guardian for an infant the wishes of the infant’s deceased parents are deemed worthy of consideration by the courts even though such wishes are not expressed in legal form (*Underhill*v. Dennis, 9 Paige, 202; *Cozine*v. *Horn,*1 Bradf., 143; *Foster v.*Mott, 3 Bradf., 409). There seem to be good grounds for believing that if the importance of appointing an executrix had occurred to the decedent she would have chosen Mrs. Case for that office, and besides, that lady is a niece of the decedent and resides in this city, while Mrs. Smith resides in the State of New Jersey, and is not of decedent’s blood.

Letters may issue to Mrs. Case.