In re the Estate of Fuchs

126 Misc. 90, 213 N.Y.S. 431, 1925 N.Y. Misc. LEXIS 1048

Opinion

Foley, S.

I see no reason to change my former decision herein. (N. Y. L. J. Sept. 26, 1925.) The order of preference established by section 118 of the Surrogate’s Court Act (as amd. by Laws of 1925, chap. 574), subdivision 6, paragraph a, gives the public administrator a right superior to the persons mentioned in paragraph c of subdivision 6, and described therein as “ any other person or persons.” I cited in my former decision Matter of D’Adamo (212 N. Y. 214); Rocca v. Thompson (223 U. S. 317). The previous decision in Matter of Arbuckle (77 Misc. 309) was clearly overruled by these later cases and by the revision of former section 2660 of the Code of Civil Procedure into section 2588 of the Code of Civil Procedure, now embodied in the form of section 118 of the Surrogate’s Court Act. I hold that the Swiss Consul comes within paragraph c of subdivision 6, and is only entitled to letters when he represents a person or persons entitled to take or share and only if the public administrator renounces letters under his prior right. The order of preference enumerated in section 118 is.limited to the individuals holding the specified relations. It cannot be extended to an agent or attorney in fact or other representative such as the Consul is here. Letters will be denied to the Swiss Consul and will be issued to the public administrator. Submit decree on notice accordingly.