The order of the surrogate is reversed, on the ground that by the statute prescribing the order in which the next of kin of an intestate shall be- entitled to letters of- administration, adult daughters are entitled, in preference to the guardians of minor sons.
Section 27 (3 R. S. p. 158, 5th ed.) prescribes the order in which the next of kin shall be entitled to letters of administration in cases of intestacy. It is provided by section 28, that in determining who of a class shall be preferred, males shall be preferred to females. This general provision is controlled by section 32, which declares that letters shall not be granted to minors.
By section 27 it is declared that if any of the several classes mentioned therein be minors, letters shall issue to their guardians. If none of the relatives of the intestate or guardians of minors will accept, then letters are to issue to the creditors of the intestate.
It is quite obvious that guardians are not to be appointed in the same cases in which their wards would be entitled if of full age. If that had been the intention of the legislature it would not have provided that guardians should be entitled after relatives and before creditors.
Independent of the statute, it would seem to us to be most judicious that guardians should only be entitled in the event that there is no adult relative who is competent. (Wickwire v. Chapman, 15 Barb. 302.) The order of the surrogate is reversed, with costs.
Muttm, P. J, and Johnson and Taloott, Justices.]