#### In the estate of David Walker Williams, deceased.

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

*Filed November*3, 1886.)

1. Executors and Administrators — Ancillary letters — To whom granted — Code of Civil Procedure, §§ 2696, 2697.

A decedent residing in the State of Tennessee left assets in the county and State of ÍTew York. The administrator of the domicile having applied here for ancillary letters of administration. *Held,*that the surrogate might, in his discretion, refuse to grant such letters, in view of the fact that certain relatives of the decedent had previously applied to him for letters of administration, and that such applications were pending and undetermined.

2. Same — When application must be denied — 2 R. S., title 2, chap. 6, §27.

Where a resident of New York, being a relative of decedent, applies for letters of administration upon such decedent’s estate, the application must he denied if it is opposed by a non-resident relative who resides in the United States and is entitled to priority under § 27, title 2, chap. 6, part 2, Revised Statutes, and is otherwise competent to administer.

Rollins, S.

This decedent died in June last, at Clarksville, in the State of Tennessee, leaving him surviving no widow, child or father. There are assets of his estate in this county, and applications for authority to administer upon these assets have been made in behalf of three persons, the decedent’s mother, Lucy E. Williams, his half brother, Fielding L. Williams (now temporary administrator), and one Polk G. Johnson of Tennessee, who in July last was appointed principal administrator in that State, and who here seeks to obtain letters ancillary.

I do not agree with the counsel of Mr. Johnson that the Surrogate is bound by the requirements of section 2697 of the Code of Civil Procedure to grant the application of his client. That section simply indicates the person or persons to whom ancillary letters *must*be issued, if they are issued at all. But upon reference to section 2696, it clearly appears that the Surrogate may decline to grant letters ancillary in case of the pendency of an application made by a relative of the decedent for letters of administration. Two such applications are now pending. The petition of Polk G. Johnson is denied,

Lucy E. Williams, the mother of this decedent, has a claim to principal letters of administration superior to that of any other person. Section 27, tit. 2, chap. 6, part. 2, Rev. Stat. (3 Banks, 7th Ed., 2290), declares that administration in case of intestacy shall be granted to the relatives of the decedent who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: 1st, to his widow; 2d, to his children; 3d, to his father; 4th, *to the mother;*5th, *to the brothers.*It has been repeatedly held that the withholding of letters of administration from one who, if not for some cause incapacitated, would be entitled in priority under the statute, is *362never justifiable except in cases where his disqualification is declared by the statute itself (*O'Brien*v. Neubert, 3 Dem., 156; *Coope*v. Lowerre, 1 Barb. Ch., 45; *Emerson*v. Bowers, 14 N.Y., 449).

It is claimed by counsel for Fielding L. Williams that this claim of priority cannot be successfully maintained in behalf of a non-resident. He relies upon section 2662 of the Code of Civil Procedure, which gives the surrogate discretionary authority to appoint an administrator upon the application of a relative of the decedent, even without citation to. nearer relatives who reside without the State.

It is doubtless true that, if in the case at bar the Surrogate had heretofore granted letters to Fielding L. Williams, without notice to Lucy E. Williams, and without opposition on her part, she could not now procure the revocation of such letters upon the ground of her superior title (Matter of Christopher Starr Brewster, Daily Reg., August 25, 1886). But that is not the present situation. The mother and brother of the decedent are simultaneously before the court as rival applicants. The former asserts her prior right to letters. As I cannot find upon the papers before me that she is incompetent, her petition must be granted. Letters may issue accordingly; and pursuant to her request and written consent, Polk Gr. Johnson may be joined with her in the administration.