said: “I am now served with a per-; emptory mandamus from the Supreme Court, commanding me, forthwith, to issue letters of administration on the goods, chattels, and, credits of the intestate, to the Public Administrator. Simultaneously with the service of this writ, the petition of Helen P. S. Mitchell, asking for administration to be granted to her, has been presented and filed with the Surrogate. The petitioner sets forth", that she is a resident of this city, and is a niece' of " the intestate; that the intestate left him surviving two nephews and the petitioner, his niece, as aforesaid; and also léft descendants of two other nieces, who are deceased '; and that these are the only next of kin. The petitioner" also presents and files a written renunciation of the administration executed by the said two nephews, by their attorney in fact, and duly proven. They are both nonresident'aliéns, however, and this renunciation was scarcely needed to strengthen her case. It is very apparent, therefore, that the Surrogate must either disregard the Supreme Court’s writ of mandamus, or disregard, the Revised Statutes. The Itevised Statutes (§ 27, art. 2, title 2, chapter 6, part 2), as amended by the act of 1867; (Session Laws, chapter 782, p. 1927), provide 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 his widow;" second, to - his children;'"third, to the *103father; fourth, to the mother; fifth,. to the brothers; sixth, to the sisters; seventh, to the grandchildren; eighth to any other next of kin who would belenti-' tied to share in the distribution of the estate. In' the, city of, Hew York the Public .Administrator shall! have preference after the next of kin, over creditors' arid all other persons,’ How,.it,is .unquestionable that the-niece is entitled to the administration, and that the Public Administrator, in presence of her application, has no,, standing whatever in Court. Am I precluded from obeying the law,'.and granting letters to her, by the mandamus by. which I am commanded to grant them to the Public Administrator % In answer to this, I may remark that it can be safely assumed the Supreme Court would' never1 have issued its writ, at least, would never have made, it peremptory, h,asd,it.known what the Surrogate knew of this, case, which was, immediately before him, It certainly! would not have placed itself in' the' attitude" rif insisting! upon the bestowal of these letters upon the Public Administrator, had it been advised that "there were representatives of the family of. the deceased iriditis.city, iritendirig to apply for. letters as .soon as practicable; Had "it been so advised, I do not doubt it would have concurred with! the.Surrogate that the policy of our law is not to' intrust private property to-.the care of public officers and'strangers, where theré are those who are able arid desirous to take, charge of .their own affairs. . The mandamus before me has been issued without the suspicion that any kin had been . discovered. Information ’ of ' this nature, indeed, would not he likely to reach Justices of the Supreme Court as soon as it would reach a Surrogate, whose special, and constant business it is to oversee and direct th.e.care of estates, and familiarize himself with the affairs of deceased persons. In fact, the Supreme'Court, imthis matter,, has.of course acted solely on the relation and reiuesentatiotí of, the"Public Adriiiriistratof, and that ■functionary,- who is a litigant before- me- in, this- - matter, *104naturally took no especial pains- to find, the next of kin, or to inform the Court, of their existence.. Had the Supreme Court possessed the Surrogate’s information, it would scarcely have endeavored to assume the Surrogate’s duties, by ordering letters of administration to he issued; and it . would not, of course, have assumed the. position of commanding the Surrogate, under its, solemn- seal, and with this potential writ which now lies before me, to. ignore the plain provisions of the law.' There is, no - alternative for me but to obey the statute; at the. risk of appearing .to treat the writ with .disrespect. : Letters of administration , must he granted and issued to Helen Pi S. Mitchell,, niece and next of kin of the intestate, and not to the Public Administrator.. The mandamus will-, be. filed with the order in the Surrogate’s office.” - . ;
The. Surrogate thereupon entered the following order:
At a" Surrogate’s Court, held for the County of Hew York, at the Surrogate’s office, on the • . ' twenty-second day of December, in the year one ’’ '' ‘ ' thousand eight hundred and sixty-eight.."
• . Present—-Gideon J. Tucker, Esq., Surrogate.'
In the, matter op" the Administration op the Goods, &c.', óp DAVID PATULLO, DECEASED. . ■- '
' ' ' ' ' • , , ‘
- A petition having been heretofore, to wit, on the twenty-third day of October, 1868, filed- by the ¡Public Adminis-trator in the city pf Hew York, praying, for letters ’of administration on the goods, etc., of David Patullo, late of said .city,, deceased, . intestate; and .Hugh .Ferrigan, claiming to be a creditor of .said intestate, and a person-interested in his estate, having on the- same day appeared and contested the granting of letters of administration .to said Public Administrator under- the statute; and the Surrogate having set down the said petition, and objections - for a hearing, as required by lay ; and. the .sMA Ferrigan, *105having on the twenty-seventh day of October, 1868, again in writing, objected to’ the granting of such letters, and said objections being filed; and the matter having' been adjourned to this day; and the said Public Administrator now appearing, by Robert D. Livingston, Esq., his proctor, and' having demanded ■ the issuing of such- -letters, and having served upon the Surrogate personally, a certain writ of peremptory mandamus, issued" but of and under the seal of the Supreme Court, wherein" and whereby the Surrogate" of the county of Hew York is- commanded to issue such letters of administration to the said Public Administrator; and one Helen Patullo Simpson Mitchell, now appearing, and presenting her petition, duly verified, whereby it appears that she is a niece of the said intestate, and a resident of the city of Hew York; that the said intestate left surviving her the said petitioner, who ,is his niece, and also two nephews, Edward Weir, and George Patullo Weir, and also the descendants of two deceased nieces, all of whom áre his only next of kin; and said petitioner also presenting a written renunciation, duly proved'and executed, whereby the said nephews, Edward Weir and, George Patullo-Weir, by their attorney in fact, renounce, the right of administration" on said, goods, etc., and also an affidavit showing that she did not reside in the city of Hew York at the time of the death of said intestate; and said petition and renunciation, and affidavit having been duly filed; and the powér of attorney- executed by said nephews; being also duly filed;" and certain "objections being presented by the Public Administrator"’ to the -issuing of letters to the said Helen P. S. Mitchell, and ‘being also-filed ; and due consideration of the whole matter being had by the Surrogate; and it appearing that the said petitioner, Helen Patulló Simpson Mitchell, the niece of the said intestate, is the person first entitled to receive letters of administration, under-the law of the State of Hew York, and that she is á reía-' tive.. of - Hie -deceased,- entitled to a-sharé-in his--estate";‘will-'" *106ingj competent, and. qualified, according to. law, to take letters of administration; and on motion of Benjamin ' Galbraith,.Esq., proctor for said petitioner: . .-
It is ordered that the prayer of petitioh-.of said Public ' Administrator be and the same is hereby denied, and that-the prayer of the petition of said Helen Patullo Simpson Mitchell be and the same is hereby granted; and that..-, letters of administration on the goods, etc.-, .of- said David . Patulloy deceased, do issue to said- Helen Patullo Simpson Mitchell,' on her executing a bond' in the. penal-sum of’.’-$400,000, as provided by law; and that the-said- mandamus be. filed in the office of the Surrogate.
Gideon J. Tucker,
'Surrogate.
Nóte.—In return to the peremptory mandamus, December 29,1868, the Surrogate filed in the Supreme Court a certified copy, of- "the abóye order: On December 30, a consent to discontinue the mandamus proceedings was given by the attorney for the relator, and an order of dis- • missal entered thereon in the Supreme Court.