Opinion
April, 1902.
C.A. Waldron for Fannie Van Norden, for motion.
Thomas O'Connor for George H. Fuite, opposed.
The order appointing administrators which purports to have been entered by my predecessor in office on the 16th day of October, 1901, is not signed by the surrogate and does not seem to have been entered by his express direction. It appears to have been entered, unadvisedly and through inadvertence, by the clerk; and both parties to this proceeding agree that it should be vacated.
The petitioner, Fannie Van Norden, claims to be entitled to such letters because she is of nearer kin to the intestate than George H. Tuite. The latter claims to have a prior right by virtue of the following provision contained in section 2660 of the Code of Civil Procedure: "If several persons of the same degree of kindred to the intestate are entitled to administration, they must be preferred in the following order: First, men to women."
Both of the present claimants are included in the eighth class mentioned in the previous portion of the section, and the argument of the counsel for the petitioner Tuite is that it is the intention of the statute that this preference of men to women shall apply to all who are included in the same class.
This, however, is not in accordance with the language of the provision which makes it applicable only to "persons of the same degree of kindred to the intestate." The language of this provision contains an implication that, as between those of different degrees of kindred to the intestate, those of nearer kin are preferred to those of kindred more remote. On no other theory can the language of this provision lead to a reasonable result and it would do violence to the plain import of the words if the interpretation claimed by the petitioner Tuite were given to them; for the words "persons of the same degree of kindred" would then be interpreted to mean persons of different degrees of kindred who might be included in the same class.
The whole scheme of preferences is based upon nearness of kin to the intestate. Priority of application is not a ground of preference except among creditors. Nor can the grandnephew, George H. Tuite, stand in the place of his mother, who was one degree nearer of kin to the intestate than he, so as to be entitled to the prior right she would have had if living.
I am clearly of the opinion that, in the present case, the niece is to be preferred to the grandnephew.
An order may therefore be entered vacating the order of October 16, 1901, directing letters of administration to issue to George H. Tuite and Fannie Van Norden jointly, and granting letters to the said Fannie Van Norden.
Decreed accordingly.