The executor, Wright, having once entered upon the discharge of his duties, as executor, and having afterwards, on application to the Supreme court, been permitted to resign, and by the court, discharged from his duties, cannot, under § 2639, of the Code of Civil Procedure, retract that resignation (Matter of Suarez, 3 Dem., 164). The application of Mrs. Foote for the appointment of John K. Halstead, a stranger to the estate, cannot prevail against the application of Mrs. McQuoid, Mrs. Win-field and Mrs. Wright, who are legatees.
The right to the administration is now controlled by § 2643 of the Code of Civil Procedure. The portion of the estate, left unadministered by the deceased executor, is that part of the residue of his estate, which was given the executors in trust for the purposes specified in the will; and those ultimately entitled to receive it do not take as residuary legatees, but rather as remaindermen, or general legatees. All the persons interested in the fund are, therefore, to be classed together under the second subdivision of the section, which directs the issuance of letters “ to the principal or specific legatees ” who are qualified to act as administrators (See Quintard v. Morgan, 4 Dem., 168). Harry S. Beakes lives in a remote .-state, and does not desire the appointment. George W. Foote being a minor, his guardian cannot take as *131against the adult legatees (Cottle v. Vanderheyden, 11 Abb., N. S., 17; Estate of Morgan, 8 Civ. Pro. R., 77; s. c. Quintard v. Morgan, supra).
The interests of Mrs. McQuoid, Mrs. Winfield and Mrs. Wright in the. fund are very remote. They are ladies well advanced in life, and whether they shall ever be entitled to share in the fund depends not only upon the contingency of Mrs. Foot and Harry S. Beakes, or either of them, dying without leaving living issue, but upon their surviving the happening of this contingency upon which their interests depend (Hulse v. Reeves, 3 Dem., 486; aff’d, Ct. App., Oct., 1886).
Mrs. Foote alone remains to he considered. She has a vested life interest in one half of the fund, and would, therefore, seem to have the highest claim to the appointment. Therefore, exercising the discretion belonging to the court, which of several persons to designate, I direct that letters issue to Mrs. Foote, if she desires to act, and, if not, then to Mrs. McQuoid, Mrs. Winfield and Mrs. Wright. If Mrs. Foote desires to associate Mr. Halstead with her, she may do so (Quintard v. Morgan, supra).