In the Matter of the Administration of the goods and chattels of Benjamin Curser, deceased

In the Matter of the Administration of the goods and chattels of Benjamin Curser, deceased. The provision of the act of 1867 in reference to the authority and jurisdiction of surrogates (§ 2, chap. 782, Laws of 1867), which provides that a married woman shall be capable of acting as an administratrix and of receiving letters as such the same as if unmarried, did not repeal the provision of the Revised Statutes (2 R. S. 74, §. 28), giving a preference in the granting of administration to unmarried over married women of equal degree of kindred. The said act frees the married woman from pre-existing disabilities and so can have effect without disturbing the statutory order of appointment, and the two enactments are not necessarily inconsistent. Accordingly held, where a surrogate issued letters of administration to one of two sisters who was unmarried, without notice to the other, who was married, that the provision of the Code of Civil Procedure (§ 2662) requiring notice to every person having a prior or equal right did not apply and that the appointment was valid. In re Gurser (25 Hun, 579). reversed. West v. Hopes (4 Redf. 496), overruled. (Argued May 30, 1882 ; decided June 13, 1882.) Appeal from order of the General Term of the Supreme Court in the second judicial department, made the second Monday of December, 1881, which reversed two orders of the surrogate of Westchester county, one of which denied the petition of S. Cecelia Baxter asking for the revocation of letters of administration before that issued to Martha E. Yarian, as sole administratrix of the estate of Benjamin Gurser, and for the issuing of joint letters to the said petitioner and said Martha E. Yarian; the other refused to grant joint letters. The order of General Term also vacated and set aside the letters so granted. (Reported below, 25 Hun, 579.) The two applicants were sisters and the only surviving children of the deceased. Isaac H. Cook for appellant. Section 2 of chapter 728 of the Laws of 1867 did not repeal the preference declared in 2 R. S. 74, chap. 6, title 2, art. 2, § 28. (Code of Civil Procedure, §§ 2660, 2662; Cobb v. Beardsley, 37 Barb. 192; 2 Bliss’ Code, 647; 2 Black. Com. 496, 504, 505; 2 Kent’s Com. 411, 412, 414 [12th ed.] ; Tonnele v. Hall, 4 N. Y. 144; 1 Black. Com. 59 ; Barnes v. Underwood, 47 N. Y. 359; Van Rensselaer v. Snyder, 9 Barb. 302; Brown v. Lease, 5 Hill, 221; McCarte v. Orphan Asylum Soc., 9 Cow. 437-506; Williams v. Porter, 2 Barb. 320; Dwarris, 672, 676 b.) A construction which repeals another statute should be very clear, and especially is this true when the repeal is a part of a statute and it seriously mars the harmony of a system. (Hayes v. Symonds, 9 Barb. 260 ; People, ex rel. Kingsland, v. Palmer, 52 N. Y. 83; Smith v. People, 47 id. 330; Mongron v. People, 55 id. 613 ; Powers v. Shepard, 48 id. 541; Davis v. Fairbairn, 3 How. [U. S.] 636; Wallace v. Bassett, 41 Barb. 92; Mayor of New York v. Walker, 4 E. D. Smith, 258; Potter’s Dwarris, 154, 155, 157, n.; 1 Kent, 521, 523, 524; Cobb v. Beardsley, 37 Barb. 192; Code of Civil Procedure, §§ 2660, 2662.) The discretion of electing to appoint as administrator one or more of those equally entitled belongs to the surrogate, and it is his prerogative. (3 Blackstone, 496, 504, 505; 2 Kent, 411, 412, 414; 1 Barb. Ch. Pr. 45; 2 Caine’s Cases, 143 ; 2 Brad. 207; Code of Civil Procedure, § 2666 ; Tilton v. Beecher, 59 N. Y. 176.) Odie Glose for respondent. An unmarried woman has no prior right over a married woman to letters of administration on the property of a deceased person where both are of the same degree of kindred. (2 R. S., chap. 4, part 2, § 27, tit. 2; id., chap. 6, part 2, title 2, § 32; Laws of 1867, chap. 782, § 2; West v. Mapes, 4 Redf. 496; Redfield on Law and Practice of Surrogate’s Court, 299.) [MAJORITY — Pectoh, J.] Pectoh, J. The surrogate issued letters of administration to one of two sisters, who was unmarried, without notice to the other, who was a married woman. If the two had- in all respects an exactly equal right, notice to one was an essential requisite to a valid appointment of the other. (Code, § 2662.) But if the provision of the Revised Statutes establishing preferences among those of equal degree of kindred to the intestate, as males to females, relatives of the whole blood to those of the half blood, and unmarried' to married woman (2 R. S., title 2, part 2, chap. 6, § 28), remains unrepealed and in force, the appointment was valid, and notice to the married sister unnecessary. So much of the provision referred to as gives a preference to the feme sole is claimed to have been repealed by the act of 1867 relating to the authority and jurisdiction of surrogates. (Chap. 782.) The second section provides that a married woman shall be “ capable ” of acting as administratrix and “ receiving ” letters as such as though she was unmarried, and that her bond given on such appointment shall be valid and effectual. There is in this act no express repeal of the previously existing preference, and if it is so repealed at all it is by implication. That is the conclusion of the General Term in this case, and supported by the similar ruling of the surrogate of Eew York. ( West v. Mapes, 4 Redf. 496.) But a repeal by implication must rest upon very clear and definite reasons. (People, ex rel. Kingsland, v. Palmer, 52 N. Y. 83; Mongeon v. People, 55 id. 613.) It must be the necessary solution of an inconsistency not otherwise to be solved. If the two statutes, on any reasonable construction, can stand together, and if the later enactment has scope to operate, and an apparent purpose of its own, without working a repeal of the earlier provision, both must be upheld and harmonized. The law of 1867 had such scope and purpose. Under the Revised Statutes the married woman could' not be administratrix. She was classed among the incapables. (2 R. S., 75, § 32.) And where her relationship to the intestate would otherwise have given her the right, it went to her husband. Undoubtedly this was one of the results flowing from the theory which merged .'her existence in his, and narrowed or denied her separate rights. The later legislation which gradually invested her with the control of her own property, and recognized her independent existence, left no reason for retaining in the law her incapacity to act as administratrix. The old. theory loosened its hold slowly. The act of 1863 took the next step. (Ohap. 862, § 4.) It made her capable of such appóintment “ with the written consent of her husband.” So that when the act of 1867 was passed it found two disabilities remaining and two difficulties needing to be removed. Accordingly, it enabled the married woman to act- as administratrix as if she was unmarried, thus dispensing with the condition of her husband’s consent, and made her bond valid and effectual. The act, therefore, had scope for its operation, and pufposes to accomplish without touching the existing preference. We are not compelled to refer it' to that for “lack of other subject on which it could operate. Bor is it necessarily inconsistent with such preference. It is an enabling act. It deals with, the capacity of the married woman to act as administratrix and receive letters as such. It frees her from disabilities, and its language is satisfied and its apparent aim reached without disturbing the statutory order of appointment. The two enactments can stand together and are not necessarily inconsistent. The married woman is freed from every disability affecting her capacity to act as administratrix. She is made just as capable of so doing, even to the giving of bonds, as her unmarried sister, but when choice is to be made between the two the preference is with the latter. That preference does not affect or modify the equal capacity of the married woman to act as administratrix and to receive letters. It creates and assumes such equality, but chooses between the two as equally capable, and of equal degree of kindred, giving a preference of appointment to the unmarried woman. It is not difficult to discover reasons for the choice. The possible influence of the husband over the wife in respect to the administration, and his interference through that influence, would be apt occasionally to provoke difficulty and hostility on the part of the actual relatives, viewing his suggestions or demands as the meddling of a stranger in blood; and his own action would not always be moulded and shaped in accordance witli that natural affection and confidence which usually exists between those of the same blood. The change in the rights and capacity of the wife removed many of the reasons for the preference of the statute but did not destroy them all. It is, therefore, a significant fact that the act of 1867 contained no express repeal of such preference. It professedly dealt with the relations and capacity of the married woman in a case of intestacy. The general subject was under consideration. Provisions of the Eevised Statutes relating to it were some amended and some repealed. That under the circumstances of such legislation the statute giving the preference was not directly repealed indicates that it was not intended to be. We think the two enactments are not so necessarily inconsistent or repugnant as to warrant us in declaring a repeal by implication. The order of the General Term should be reversed and those of the surrogate affirmed, with costs. All concur, except Tract, J., absent. Ordered accordingly.