Section 27 of article 2, chapter 7, part 2 of the Revised Statutes (p. 74, vol. 2,) provides as follows: "Administration, in cases of intestacy, shall be granted to the relatives of the deceased who would be entitled to succeed to his 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 none of such persons, or their guardians, will accept the same, then to the creditors of the deceased." The deceased having left no widow or children, his father, who survived him, was his next of kin, and entitled to take the whole of his estate. (2 R.S., p. 97, § 75.)
Neither the appellant's wife, who was a sister of the deceased, nor the respondent, who was his brother, were entitled to any share of the estate. The appellant was appointed administrator as a creditor, upon the refusal of the father to accept the administration. The appellant was properly appointed administrator, unless the respondent, as a brother of the deceased, was entitled to such appointment in the order of priority specified in the statute, in preference to a creditor of the intestate. *Page 422
The respondent claims to be entitled to such administration as matter of right, under the statute, and is entitled to such administration over any creditor of the deceased, unless it was essential to such claim that he should be entitled to share in the distribution of the estate.
Applying the rule, that in the construction of statutes, that construction must prevail which gives full effect to every part of the statute, I cannot see how the appellant was entitled to administration as matter of right. He was not, confessedly, at the time of his application for letters to the surrogate, "entitled to succeed to the personal estate" of the deceased. The estate had actually passed to and was vested in his father. He could only receive any share of such estate as heir to his father after his decease, and not as next of kin to his brother. An essential part of the description of the relatives of the deceased, entitled to administration as matter of right, therefore, fails in respect to the appellant. There obviously can be no such thing as a relative entitled to share in the estate of the deceased, unless such right exists at the moment of the death. The right to share in the estate is necessarily fixed at the time of the death. The amount of the estate for distribution depends of course upon the amount of the debts to be first paid; but the question, who is entitled to share in the excess after payment of the debts, is determined by the state of the relations of the kindred to the intestate existing at the time of his decease.
The true construction of this section 27, therefore, I think, requires that the relatives of the deceased therein mentioned should respectively be entitled to share in the distribution of the personal estate of the deceased, at the time of his death, to entitle them, as matter of right, to take out letters of administration upon his estate; and that the fact of an existing present interest in the estate, contingent only in respect to its amount after payment of the debts, must distinctly appear to the surrogate at the time of such application to entitle the applicant, as a matter of right, to such administration. The question for the surrogate to decide is one of interest, on the *Page 423 part of the relative in the estate at the time when the application for letters is made to him, and not merely the relation of consanguinity of the applicant to the deceased. This construction, I think, clearly required by the provision in respect to the seventh class in said section as follows: "to any other of the next of kin who would be entitled to share in the distribution of the estate." This implies that the next of kin, in all the preceding classes entitled to administration, must be entitled "to share in the distribution of the estate," as a present existing right, at the time when he applies for letters of administration. This view of this section 27 coincides with the construction put upon it in the elementary works. (Willard on Executors, 195; Dayton on Surrogates, 3d ed., p. 235.) And the question is very carefully and ably considered by the late surrogate of New York in The Public Administrator v. Peters (1 Bradf., 100), who arrived at the same conclusion. Such construction of the statute conforms also to the law as it stood in this state and in England before the Revised Statutes. Our law, regulating the granting of administration, was copied from 31 Edward III, chap. 11, and 21 Henry VIII, chap. 5. In England, it was repeatedly held that the object of these statutes was to give the management of the property of a deceased person to those who had an interest in the same. In Withy v. Mangles (10 Clark Finnell, 215, in the House of Lords), Lord COTTENHAM said: "It is an established rule of the ecclesiastical courts that the right of administration of the effects of the deceased follows the right of property in, them." And this right to administer under this statute was held to belong mainly to the next of kin at the time of the death. See also Savage v.Blythe (2 Hagg. App., 150); Almes v. Almes (id., 155).
The revisers clearly did not intend, in section 27, to introduce any new rule on this subject, or alter the law. This is negatived by the note accompanying this section when reported to the legislature, which is as follows: "17th section of act concerning executors, c. (1 R.S., p. 314) — 3d section of act concerning courts of probate (1 R.S., p. 885) — much simplified, *Page 424 according to the practice and the law as now understood, and many occasions for contest respecting preferences removed." As this section was enacted by the legislature in the precise shape reported by the revisers, with only a simple omission of the wordsuch, with which the original section as reported commenced, and which does not at all vary the sense or meaning of the section, it must be presumed that the legislature did not intend to alter the law.
To hold that the law was altered by this revision of the statutes on the subject, would be in conflict with the settled rule, that a change in the phraseology in a revision of a statute should not be construed to alter the law, unless it evidently appears that such was the intention of the legislature. (Theriat v. Hart, 2 Hill, 380; 21 Wend., 316.)
This consideration, it seems to me, should be the controlling one in the construction of this statute; as the view it sustains evidently carries out the intent of the legislature, which, when it can be clearly ascertained, should always prevail.
I think, therefore, that the decision of the court below should be reversed, and that of the surrogate affirmed, with costs.
Judgment affirmed.