#### In re WILSON’S ESTATE.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Administrators—Right to Appointment—Wipe.

Under Code Civ. Proc. § 2660, providing that administration must be granted to the relatives of the deceased “entitled to succeed to his personal property, * * * in the following order: (1) To the surviving husband or wife,” etc.,—a surviving wife is entitled to letters, though, before her husband’s decease, she had released her right to share in the distribution of the estate.

2. Same—Renunciation op Right.

A written agreement between husband and wife, whereby the latter relinquishes all interest in her husband’s estate, is not a renunciation of her right to administer thereon, under Code Civ. Proc. § 2663, providing that a person may renounce his right to administer, by a written instrument acknowledged, etc., and filed in the surrogate’s office.

Appeal from surrogate’s court, Oneida county.

Petition by Larned K. Wilson for letters of administration upon the personal estate of Larned K. Wilson, Jr., deceased. From a decree awarding letters to Emma E. Wilson, decedent’s widow, petitioner appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

W. B. Bliss, for appellant.

Sayles, Searle & Sayles, for respondent.

MERWIN, J.

The question on this appeal is whether the respondent, as the surviving wife of the decedent, is entitled to letters of administration upon his estate. It is practically conceded that she is entitled, unless she is disqualified by reason of the effect to be given to the provisions of an agreement of separation made between the respondent and her husband and a trustee on the 14th September, 1894. By this agreement the respondent, in consideration of the payment of a certain sum of money to the trustee for her, in substance, agreed to receive the same in satisfaction of any right of dower she then had or might thereafter have in any real estate of her husband, and in full payment and satisfaction of and for her distributive portion of all his personal property which he then had or might thereafter acquire, and in full satisfaction and payment of all statutory exemptions given by law to widows, to which she might at any time be entitled from his estate; and she *883thereby released all claims of dower or other interest in any of his property then or thereafter to be owned by him, and agreed that she would make no claim of dower or other interest in it. The argument of the appellant is that the respondent is not entitled to share in the distribution of the personal property, and is therefore not entitled to administer, as against the appellant, who is the father of the decedent, and his next of kin. The ground taken by the appellant in his petition to the surrogate’s court is “that the said widow, Emma Wilson, has, by an instrument in writing, released and assigned all of her right, title, and interest in the real and personal property of said deceased.” By Rev. St. pt. 2, c. C, tit. 2, § 27, it was provided as follows:

> “Administration, in case of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First, to the widow; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters; sixth, to the grandchildren; seventh, to any other of the next of kin who would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors, administration shall be granted to their guardians; if none of the said relatives or guardians will accept the same, then to the creditors of the deceased; and the creditor first applying, if otherwise competent, shall be entitled to a preference; if no creditor apply, then to any other person legally competent."

Under this statute it was held in Lathrop v. Smith, 24 N. Y. 417, that it was not essential to the right of administration that the person administering should stand in a position to take a share or portion of the decedent’s personal estate; that, when the father who was entitled to the personal estate had renounced, the brother was entitled to administration before a creditor, although the brother had no interest in the estate. Apparently the order of preference stated in detail was deemed to control the expression, “who would be entitled to succeed.” The statute upon this subject now in force is section 2660 of the Code of Civil Procedure, which reads, so far as the question here is concerned, as follows:

> “Administration in case of intestacy must be granted to the relatives of the deceased entitled to succeed to his personal property, who will accept the same in the following order: (1) To the surviving husband or wife. (2) To the children. (8) To the father. (4) To the mother. (5) To the brothers. (6) To the sisters. (7) To the grandchildren. (8) To any other next of kin entitled to share in the distribution of the estate. (9) To an executor or administrator of a sole legatee named in a will whereby the whole estate is devised to such deceased sole legatee. If the person entitled is a minor, administration must be granted to his guardian, if competent, in preference to creditors or other persons. If no relative, or guardian of a minor relative, will accept the same, the letters must be granted to the creditors of the deceased; the creditor first applying, if otherwise competent, to be entitled to preference.”

It will be observed that the expression in the Revised Statutes, “who would be entitled to succeed to his personal estate,” is changed to, “entitled to succeed to his personal property.” It is argued that this change does away with the effect of the decision in the Lathrop Case. That, however, does not clearly appear. On the contrary, the reasoning of the Lathrop Case would practically apply with as much force to the present section as to the former one. In *884effect, the two clauses of the section were deemed to be inconsistent, and the latter clause, being specific, was deemed to be controlling. See Redf. Sur. (5th Ed.) 290. It is to be observed that section 27 of the Revised Statutes, above referred to, was amended by section 3 of chapter 362 of the Laws of 1863 by adding thereto the following:

> “This section shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin at the time of his decease.”

The section was again amended by section 6, c. 782, Laws 1867, and the words added by the amendment of 1863 were left out. Nor do they appear in the Code. The amendment of 1863 indicated a legislative intention to override the doctrine of the Lathrop Case, and the repeal of that amendment indicated an intention to leave the law as the Lathrop Case put it.

The right of administration, as given to the surviving wife, was a personal one. She was, by the law, one of those entitled to succeed to the personal property. The appellant claims that she had, in effect, renounced her right, or disqualified herself by the agreement with her husband. There was no renunciation effective under section 2663 of the Code.1 If there had been, there was a right of retraction. Casey v. Gardiner, 4 Bradf. Sur. 13. .Nor was the respondent disqualified under section 2661. It has been held that the withholding of letters from a person who, if not by some cause incapacitated, would be entitled in priority, under the statute, is never justifiable, save in cases where such person is declared to be disqualified by the statute itself. Coope v. Lowerre, 1 Barb. Ch. 46; O’Brien v. Neubert, 3 Dem. Sur. 156. It is not clear that the appellant, in this proceeding, had the right to call on the surrogate’s court for a construction and enforcement of the agreement. But if that could be done, and it be assumed that under the agreement the respondent had no right to a distributive share of the estate, still I am inclined to the opinion that under the Lathrop Case, there being no effective renunciation, the respondent was entitled to letters.

The decree or order appealed from should be affirmed. Decree affirmed, with costs. All concur.

1

Code Civ. Proc. § 2663, provides that a person may renounce his right to administer an estate by written instrument acknowledged, etc., and hied in the surrogate’s office.