The only question in this case is, whether a relative of the deceased, who has no interest in the estate, is entitled to administration, in preference to the Public Administrator. Under our statute, it is not every relative of the deceased who is entitled to administration on his estate, but administration goes as a matter of right, “ to the relatives of the deceased who would be entled to succeed to Ms personal estate.” (2 JR. &■, 3d ed.,p-138, § 28.) Interest is a necessary qualification, and among those who have an interest, the statute establishes a certain order. Of course, in undertaking to settle the rule of preference in all cases, every relative who can possibly take a part of the estate in any supposable case, must be enumerated, or otherwise the rule would not be comprehensive enough. But then it must be remembered, that the classification of preferences is to be applied only to those who are entitled to administer, and that none are entitled to administer in preference to creditors and the Public Administrator, except “ those who would be entitled to succeed to the personal estate,” or, as the language is in another portion of the same section (§ 28), “ who would be entitled to share in the distribution of the estate.”
I do not understand the Revised Statutes to have introduced any new rule on this subject, except so far as the order of administration is concerned, the object in view, as appears by the Rotes of the Revisers, having been “ to remove many occasions for contest respecting preferences.” As to the principle involved in the provision, that none but the next of kin who may be entitled to a share in the estate, shall be entitled to administer, this only conforms “ to the practice and the law as then understood,” the *102provision, except as to the order of preference, being declaratory. The statute of 21 Hem/ry VIII, o. 5, s. 3, directed the Ordinary to grant administration to the widow of the deceased, or to the next of his Mn, or to both, in his discretion. It has, however, always been held in England, both in the Common Law and Spiritual Courts, that the object of the statute was to give the management of the property to the person who has the beneficial interest in it, and to reach this end, in many instances, the express words of the statute have been disregarded. (Wetdvill vs. Wright, 2 Phill., 248; Withy vs. Mangles, 10 Cl. & Fin., 248; West vs. Wiltby, 3 Phill., 381; Young vs. Peirce; 1 Freem., 496.) So, also, the right to administer, under the same statute, has been considered to extend only to such persons as are next of Mn at the time of the intestate’s death, and entitled to a beneficial interest in the estate. (Savage vs. Blythe, 2 Hagg. App., 150; Almes vs. Almes, Ibid., 155—156.)
By law, a creditor had no right to administration. It was allowed by custom or practice, on the ground that he could not be paid his debt until representation to the deceased was made. The Bevised Statutes, however, have given him the right, next after the relatives entitled to share in the distribution of the estate, subject to a preference in favor of the Public Administrator, in the city of Bew-York.
Our statute, in the first portion of the section declaring who may administer, first gives the right “ to the relatives! This is a word more comprehensive than “ the next of Mn,” including “ the widow,” who though not “ next of Mn” (Watt vs. Watt, 3 Vesey, 244), is a relative by force of the marriage relation. “Belatives,” and “next of kin,” are not convertible terms, though the latter expression is occasionally used in a way to favo! the idea that the terms mean the same thing. (See Wilson vs. Frazier, 2 Humph., 30.) Some criticism was made, on the argument, as to the force of the words “ would be,” in the *103direction that administration shall be granted to the relatives of the deceased, who “ would be entitled to succeed to his personal estate,” or “ who would be entitled to share in the distribution of the estate.” The counsel for the administrator contended, that this expression allows any one to administer, before the Public Administrator' who by any possible contingency may be entitled to a share at the time of distribution; and that any relative, therefore, who may by the decease of the next of Mu, be placed in the line of succession, can administer, because by possibility he may be entitled to share in the distribution. But tMs is not so; the distributive shares in an estate become vested on the decease of an intestate, according to the relative positions of Ms next of Mn at that time. If any one of the next of Mn entitled to a share, happen to die before the actual distribution, Ms legal representatives come in for Ms share, not as next of Mn, but by right of legal admimstration. They do not succeed by virtue of consanguimty, to a share in the estate of the first intestate, but reach it only by duly administering on the estate of the second intestate. There is no such thing, therefore, as a relative, who, at the death of the intestate, has no right to a distributive share, thereafter becoming entitled to such a share in his own right, in consequence of the death of some distributee, or any other contingency. The rights are all settled at the time of the decease. The words “ would be ” in the statute, cannot refer to what cannot possibly happen, and they cannot be explained by reference to a contingency that never can occur. The apparent meaning seems to me to be, that those who would be entitled to a distributive share when the distribution takes place, shall have the right to admimster. The distribution is, in a certain sense, contingent, being made only when a surplus remains after the payment of debts. The distributive share is always dependent upon the settlement of the estate, and the liquidation of the claims against it. It is not an interest in assets, in specie, but in a surplus to be *104ascertained at some future period. The interest, therefore, which is a necessary qualification for a title to administration, in preference to the Public Administrator, must be a right to the estate, or some part of it, in case it were then distributed, and no relative can administer unless he “ would be ” entitled to share in the distribution, p'rovided it were then made, and there were any thing to distribute. In a word, the nature of a distributive share is sufficiently contingent to justify and account for the use of the subjunctive form in the expression which defines the class of relatives entitled to administration.
I am of opinion, therefore, that a relative who has no interest in the estate, is not only quoad hoc, a stranger, but also that, for purposes of administration, he has no more title to administer than one who is not a relative. After the next of Mn who have an interest, the statute brings in the Public Administrator, in the city of ISTew-Tork.
As the facts appear in the case now before me, one claiming as half-brother of the deceased, who was an unmarried woman, obtained letters after citing the father, who did not appear. The father, by the Statute of Distributions, will be entitled to the whole surplus, after payment of debts. He is, therefore, the only next of Mn entitled to administer. The half-brother has no interest in the estate of Emma Hughes, and never can have, directly, in his own right. He is a stranger, and the father not claiming letters, they ought to have been issued to the Public Administrator. The Public Administrator was not cited, which was an irregularity, and for that reason, the letters should be revoked, as irregularly issued. (Skidmore vs. Davies, 10 Paige, 318; Vreedenburgh vs. Calf, 9 Paige, 129; Proctor vs. Wanwaker, 1 Barb. Ch. R., 302.) There must be an order accordingly.