In re Tyler

Among other things, § 2643 of the Code provides that letters of administration with the will annexed must be issued, upon the application of a creditor or person interested in the estate, as follows: 1st, to one or more of the residuary legatees, who are qualified to act as administrators; and 2d, if there is no such residuary legatee, or none who will accept, then to one or more of the principal or specific legatees so qualified. After other provisions, not material here, the section finally authorizes the Sur*50rogate to issue such letters to any proper person designated by him.

By 2 R. S., 74, § 27, as amended in 1867 (Chap. 782), it is provided that, if any of the persons entitled to administer in a case of intestacy be minors, administration may be granted to their guardians. It has been held that a mere executor is “ a person interested in the estate” of his testator, and it seems to follow that the general guardian of a minor legatee would, as such, be interested in the estate from which the legacy is derived. Hence, he may petition for the issuance of letters of administration with the will annexed. Section 33 of 2 R. S., 75, provides that, where 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 be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons. This section is unrepealed, and therefore settles the question here presented, as to whether the letters, in this case, can be issued to the guardian, as such.

There would have been no doubt on this subject, were it not for the habit which obtains of regarding the Code as a new dispensation, and as furnishing the only rule for guidance. It will be seen that § 2643 of the Code is substantially the same as 2 R. S., 71, § 14, which it supersedes. The latter declares that letters of administration with the will annexed shall be issued “in the same manner and under the like regulations and restrictions as letters of administration in case of intestacy.” The former says such *51letters shall be issued to “one or more residuary legatees, who are qualified to act as administrators.” Both exclude minors. Section 32 of the R S. declares a person under the age of twenty-one years incompetent to act, and then we come to § 33, above quoted, which, being in force, applies as well in this case as under the former practice.

The petitioner, being the guardian of the sole residuary legatee, is qualified to act, and as no person has a prior or equal right to the letters which he is entitled to receive, no citation need be issued.