Spring, J.:
Robert E. Campbell, a resident of the county of Erie, died intestate in the city of Buffalo on the 27th day of May, 1907. He left him surviving no widow, descendant or parent,, but a brother, the petitioner, who resides in the State of California, and nephews and nieces, none of whom reside in the State of Hew Tork. He left nearly $50,000 in personal property. On the thirty-first day of May letters of administration of the goods, etc., of the decedent were issued to Edward H. Pfohl upon his petition and who was a creditor of the intestate to the extént of $200, and Pfohl is now administering the trust. Ho citation was issued in the proceeding and the appellant did not know of the death of his brother until two weeks after -■ it occurred, and he had no knowledge of the issue of .letters until some time after they were granted.
On the twelfth day of July he caused his petition to he filed in the Surrogate’s Court of Erie county, asking for the revocation of the letters already issued, and after a hearing the application was denied.
[214]*214Section 2660 of the Code of Civil Procedure provides: “ Administration in case of intestacy must be granted to the relatives of the. deceased * * * who will accept the same, in the following order: ” giving nine different specifications. There is no distinction made in this section between- resident and non-resident next of kin of the intestate. ' A similar provision was.contained in the Revised Statutes,
The court, in the case last cited, say (p. 528):. “ The. plain inference and obvious meaning is that non-residence excludes only when the claimant- is not a’citizen of the United States; but where that citizenship exists the non-residence is immaterial, and has no effect upon the priority of right. The rule is not changed by section 2662 of the Code,† which does not repeal by implication the right of priority given by the Revised Statutes.” And this principle is further supported by section 2661, which defines those incompetent to receive letters, including “a person not a citizen of the United States, unless he is a resident of the State,”
• The appellant, therefore, within this imperative requirement of the Code, was first entitled to the issue' of letters because lie was the 'nearest relative of the intestate residing within the United States, unless there is some other provision modifying or nullifying this statute, which is the only one defining the order of priority of relatives to administration.
It is contended that the right of a non-resident next 'of kin may be wholly destroyed if the surrogate dispenses- with citation to him, and this contention is founded upon section 2663 [215]*215of the Code of Civil Procedure which, so far as pertinent, is as follows: “ Every person, being a resident of the State, who has a right to administration, prior or equal to that' of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any dr all other persons interested in the estate, whom he thinks proper to cite.” Where he dispenses with citation a decree may be entered and letters issued. The authority to make the decree and issue letters was construed in Libbey v. Mason (supra), and the provision was then under section 2662 of the Code of Civil Procedure. The court used this language (p. 528): “Doubtless, this clause was only intended to mean that, where the applicant had the first and paramount right, and none existed prior or equal to his, the surrogate might act at once, because citations to any one would be needless. But this innocent meaning is carried beyond its purpose by the phraseology employed, and has led-to the logic that,since it is not necessary to cite a non-resident, whatever his priority of right, the surrogate may disregard that right, and it is thereby lost. That he may disregard it seems to be true; that it is thereby lost, or ceases to exist, or has suffered a repeal, does not at all follow. It remains unchanged. The remedy for its enforcement has been modified, but the right itself has not been destroyed. The ■ surrogate riiay act without a citation to the non-resident citizen, and disregard his right because he is not present to assert it. Whether the letters so issued, although regular under the Code, would stand against an application for their revocation by the-non-resident citizen having the prior right, it is not necessary now to determine.” It will be observed that the court did not pass upon the precise question we are now considering, and yet the trend of the opinion is that the right to administer is not destroyed by the granting of letters where no citation has been issued and there has been no renunciation or waiver. I think the issue of letters without issuing a citation to non-resident next of kin does not have the effect of absolutely cutting off their right to letters of administration. Bights in the nature of property rights may not be summarily disposed of without notice. The right of administration is one of this class. The commissions allowed for administering a large estate, [216]*216the privilege of guarding and protecting property in which one may have a large interest, may make administration of the estate, very . important, to the next of kin. Undoubtedly the discretion to dispense with citation by the surrogate is often very beneficial. In a small estate where the next of kin are non-residents, the surrogate can safely assume that they will never appear to assert their rights. If the estate is likely to be expended in the payment of debts or any other reason exists indicating that those first entitled will probably not desire to avail themselves of the right to administration, the surrogate may dispense with citation to them. This ex parte ’ exercise of discretion as a matter of convenience, to their exclusion, does not destroy the right which the statute has vested in the next-of kin. The letters issued are valid until revoked, but if. those of prior right and who are not disqualified and who have not waived or renounced appear and ask for the revocation of letters already issued," the surrogate is bound to grant the application. The priority of administration is regulated according to the pecuniary interest .of those entitled' to participate in. the estate of the intestate, except that the widow is first entitled, even though her interest in her husband’s estate may be less than that of the next of kin, and a like preference is accorded to a husband on the estate of his deceased wife. The language-.of section 2660-is “ to the relatives of the deceased entitled to succeed to his personal property.” The surrogate has no discretion to ignore the order of priority unless by reason of one of the grounds of in competency specified in the statute (§ 2661). (Coope v. Lowerre, 1 Barb. Ch. 45; O'Brien v. Neubert, 3 Dem. 156; Matter of Wilson, 92 Hun, 318, 322; 18 Cyc. 83.)
It is-recognized as a right dependent upon the right to share in the personal estate.
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Spring, J.:
Robert E. Campbell, a resident of the county of Erie, died intestate in the city of Buffalo on the 27th day of May, 1907. He left him surviving no widow, descendant or parent,, but a brother, the petitioner, who resides in the State of California, and nephews and nieces, none of whom reside in the State of Hew Tork. He left nearly $50,000 in personal property. On the thirty-first day of May letters of administration of the goods, etc., of the decedent were issued to Edward H. Pfohl upon his petition and who was a creditor of the intestate to the extént of $200, and Pfohl is now administering the trust. Ho citation was issued in the proceeding and the appellant did not know of the death of his brother until two weeks after -■ it occurred, and he had no knowledge of the issue of .letters until some time after they were granted.
On the twelfth day of July he caused his petition to he filed in the Surrogate’s Court of Erie county, asking for the revocation of the letters already issued, and after a hearing the application was denied.
[214]*214Section 2660 of the Code of Civil Procedure provides: “ Administration in case of intestacy must be granted to the relatives of the. deceased * * * who will accept the same, in the following order: ” giving nine different specifications. There is no distinction made in this section between- resident and non-resident next of kin of the intestate. ' A similar provision was.contained in the Revised Statutes,
The court, in the case last cited, say (p. 528):. “ The. plain inference and obvious meaning is that non-residence excludes only when the claimant- is not a’citizen of the United States; but where that citizenship exists the non-residence is immaterial, and has no effect upon the priority of right. The rule is not changed by section 2662 of the Code,† which does not repeal by implication the right of priority given by the Revised Statutes.” And this principle is further supported by section 2661, which defines those incompetent to receive letters, including “a person not a citizen of the United States, unless he is a resident of the State,”
• The appellant, therefore, within this imperative requirement of the Code, was first entitled to the issue' of letters because lie was the 'nearest relative of the intestate residing within the United States, unless there is some other provision modifying or nullifying this statute, which is the only one defining the order of priority of relatives to administration.
It is contended that the right of a non-resident next 'of kin may be wholly destroyed if the surrogate dispenses- with citation to him, and this contention is founded upon section 2663 [215]*215of the Code of Civil Procedure which, so far as pertinent, is as follows: “ Every person, being a resident of the State, who has a right to administration, prior or equal to that' of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any dr all other persons interested in the estate, whom he thinks proper to cite.” Where he dispenses with citation a decree may be entered and letters issued. The authority to make the decree and issue letters was construed in Libbey v. Mason (supra), and the provision was then under section 2662 of the Code of Civil Procedure. The court used this language (p. 528): “Doubtless, this clause was only intended to mean that, where the applicant had the first and paramount right, and none existed prior or equal to his, the surrogate might act at once, because citations to any one would be needless. But this innocent meaning is carried beyond its purpose by the phraseology employed, and has led-to the logic that,since it is not necessary to cite a non-resident, whatever his priority of right, the surrogate may disregard that right, and it is thereby lost. That he may disregard it seems to be true; that it is thereby lost, or ceases to exist, or has suffered a repeal, does not at all follow. It remains unchanged. The remedy for its enforcement has been modified, but the right itself has not been destroyed. The ■ surrogate riiay act without a citation to the non-resident citizen, and disregard his right because he is not present to assert it. Whether the letters so issued, although regular under the Code, would stand against an application for their revocation by the-non-resident citizen having the prior right, it is not necessary now to determine.” It will be observed that the court did not pass upon the precise question we are now considering, and yet the trend of the opinion is that the right to administer is not destroyed by the granting of letters where no citation has been issued and there has been no renunciation or waiver. I think the issue of letters without issuing a citation to non-resident next of kin does not have the effect of absolutely cutting off their right to letters of administration. Bights in the nature of property rights may not be summarily disposed of without notice. The right of administration is one of this class. The commissions allowed for administering a large estate, [216]*216the privilege of guarding and protecting property in which one may have a large interest, may make administration of the estate, very . important, to the next of kin. Undoubtedly the discretion to dispense with citation by the surrogate is often very beneficial. In a small estate where the next of kin are non-residents, the surrogate can safely assume that they will never appear to assert their rights. If the estate is likely to be expended in the payment of debts or any other reason exists indicating that those first entitled will probably not desire to avail themselves of the right to administration, the surrogate may dispense with citation to them. This ex parte ’ exercise of discretion as a matter of convenience, to their exclusion, does not destroy the right which the statute has vested in the next-of kin. The letters issued are valid until revoked, but if. those of prior right and who are not disqualified and who have not waived or renounced appear and ask for the revocation of letters already issued," the surrogate is bound to grant the application. The priority of administration is regulated according to the pecuniary interest .of those entitled' to participate in. the estate of the intestate, except that the widow is first entitled, even though her interest in her husband’s estate may be less than that of the next of kin, and a like preference is accorded to a husband on the estate of his deceased wife. The language-.of section 2660-is “ to the relatives of the deceased entitled to succeed to his personal property.” The surrogate has no discretion to ignore the order of priority unless by reason of one of the grounds of in competency specified in the statute (§ 2661). (Coope v. Lowerre, 1 Barb. Ch. 45; O'Brien v. Neubert, 3 Dem. 156; Matter of Wilson, 92 Hun, 318, 322; 18 Cyc. 83.)
It is-recognized as a right dependent upon the right to share in the personal estate. In fact, the order of priority is preserved so carefully that where several persons are equally entitled to administer, the one to whom letters are issued may have a stranger join with him in the administration (§ 2660). In this way even though. he may not be able -personally to obtain the necessary bond or may hesitate to assume alone the administration of a large estate, he may still retain his right.
• Section 2685, in providing for the revocation of letters of administration, includes among the cases where the administrator has [217]*217become “ disqualified by law to act as such,” the objection'not having been taken when the letters were issued (Subd. 1). It has been held to be a disqualification within this subdivision where one without a prior right. applies for revocation. (Matter of Tyers, 41 Misc. Rep. 378.)
In this case the petitioner is entitled to one-fourth of this estate of $50,000, and is the one first entitled to the issue of letters. The respondent was appointed without any notice to him. Speedily upon learning of the death of his brother he made application to revoke the letters already issued, with a view of asserting his own right.
If I am in error in the position I have taken, I think the surrogate abused his discretion in not issuing citation. Again, the original petition filed estimates the value of the personal estate of the intestate at the sum .of $15,000. Subsequent to the issue of letters to the respondent, he ascertained that the property amounted to about $50,000 and another bond was given. It might be the surrogate would have required a citation to issue had he been apprised of the value of the property in the petition filed by the respondent. The exercise of his discretion in determining whether ,a citation shall issue must depend to a large degree upon the value of the estate. His statement in his opinion (56 Misc. Rep. 229) that he would not have been influenced by the fact is no sufficient answer. He was then seeking to justify his refusal to revoke. When the correct amount of the property was made known to him he should have caused notice to be served on the appellant. Hpon appeal from the decision of a surrogate on the facts, the appellate court has the same power to determine the facts which the surrogate possessed; (Code Civ. Proc. § 2586.) A reasonable consideration of the rights of the next of kin required the revocation of the letters issued to the respondent.
The order of the surrogate should be reversed, with costs of both parties payable out of the estate.
All. concurred, except McLeotan, P. J., and Eobson, J., who dissented in an opinion by Eobson, J.
See 2 R. S. 74, § 27, as amd. by Laws of 1863, chap. 362, § 3, and Laws of 1867, chap. 782, § 6; 2 R. S. 75, § 32, as amd. by Laws of 1830, chap. 320, § 18, and Laws of 1863, chap. 362, § 4. See, also, Laws of 1880, chap. 245, § 1, subd. 2, ¶ 3; Id. subds. 8, 39, 43; Laws of 1893, chap. 686, Schedule of Laws Repealed; Id., amdg. Code Civ. Proc. (Laws of 1880, chap. 178), § 2660 et seq., as amd. by Laws of 1894, chap. 503, and Laws of 1897, chap. 177.—[Rep.