GODDARD V. PUBLIC ADMINISTRATOR. APPLICATIONS by L. Josephine Goddard and others, and by the public administrator of Kings county, for letters of administration on decedent's estate. The facts appear sufficiently in the opinion. BERGEN & DYKMAN, for L. Josephine Goddard and others. CHARLES H. OTIS, for public administrator. THE SURROGATE.-There are two applications pending in the above entitled matter: one is on behalf of Lettie A. Reitz, L. Josephine Goddard and Lydia Goddard Arnzen, for letters of administration to issue to the Brooklyn Trust Company, and the other is by the public administrator in Kings county, for letters to issue to himself. The first application is opposed by the public administrator, who insists that he has the prior right to administer, under L. 1877, ch. 154, as amended by L. 1882, ch. 124. The second application is opposed by L. Josephine Goddard, who insists that the Brooklyn Trust Company has the prior right to administer under L. 1877, ch. 383. L. 1877, ch. 154, § 4, passed April 17th, 1877, reads as follows: "Such public administrator shall have absolute and sole authority to collect, take charge of and administer upon the goods, chattels, personal estate and debts of persons dying intestate." On the other hand, the counsel for the Trust Company insists that it is entitled, under the latter portion of L. 1877, ch. 383, § 1, passed June 2d, 1877, which provides as follows: "Said court or Surrogate may, at the request of any party interested in the estate, whether as creditor or as beneficiary, grant letters on said estate to said company;" and that the word may must be construed shall. VOL. I.-31 GODDARD V. PUBLIC ADMINISTRATOR. If the construction contended for is the correct one, it would deprive the Surrogate of the discretion which I think the legislature intended to give him. But I think the legislature meant just what is expressed in the art, viz: that the Surrogate may grant letters, etc., to the Trust Company in his discretion, for if it was to be mandatory, they would have substituted the word shall for may. It was a discretion given to a judicial officer, to be exercised in favor of the Trust Company, in a proper case. If the laws above quoted were the only ones affecting the right of the parties in question to administer, I think this act would modify the one of the public administrator, to the extent of permitting the Surrogate to exercise his discretion in the granting of letters of administration. I am, therefore, of the opinion that the act of the Trust Company did not repeal the act of the public administrator of 1877, but that both must stand and be construed together. But the public adminstrator contends that, while he had the absolute authority to administer, etc., before the Trust Company act of 1877, even if the Surrogate might, under the Trust Company act of that year, exercise his discretion in favor of the company, yet under L. 1882, ch. 124, he is prevented from exercising that discretion, and that letters must now be granted to him. Section 4 of said act provides as follows: "Such public administrator shall have the prior right and authority to administer, etc.," in all cases next after the next of kin. It would, therefore, seem from the above that the Sur GODDARD V. PUBLIC ADMINISTRATOR. rogate has been deprived of that discretion. On the most favorable construction for the Trust Company, under these acts, the Surrogate had, at most, only discretionary power to grant letters to them before the act of 1882. But even if the effect of the amendment of 1882 to the public administrator's act be to limit the powers theretofore exercised by him, and not to confer additional powers as against the Brooklyn Trust Company's claim, still, in the exercise of my judicial discretion, I should grant letters of administration in this case to the public administrator. The details of administration are of such a nature as to render it more fitting that the duties of an administrator should be performed by an individual rather than a corporation. There are no investments to be made, as in the case of a guardian, trustee or committee of a lunatic. The duties of an administrator are all matters of detail, such as marshaling the assets of the deceased, advertising for creditors to present their claims, determining the validity of claims presented, paying debts, and finally distributing the fund among those entitled as next of kin. These duties require a personal supervision, and in my opinion will be better performed by the public administrator, whose special fitness for the discharge of such offices is well recognized. The application of the next of kin is denied, and that of the public administrator granted. Let decrees be entered accordingly. GUGEL V. VOLLMER. KINGS COUNTY.-HON. JACOB I. BERGEN, SURROGATE.-March, 1883. GUGEL V. VOLLMER. In the matter of the probate of the last will and testament of MORITZ VOLLMER, deceased. Under R. S., part 2, ch. 6, tit. 1, § 42 (3 Banks, 7th ed., 2286), providing that "no will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself,” etc.; a part of a will cannot be revoked by cancellation or obliteration. Testator's will consisted of six pages, four of which were marked across, as having been stricken out at some time after its execution, with a marginal note on each of the four pages, in the testator's handwriting, as follows: "I pronounce this void, July 24, 1878." All the writing on the pages so marked remained perfectly distinguishable.— Held, no revocation, and that the entire will, as executed, must be admitted to probate. Lovell v. Quitman, 88 N. Y., 377-followed. PETITION, for the probate of decedent's will, by William Vollmer, a legatee therein named; opposed by Christena Gugel, a daughter of decedent. The facts appear sufficiently in the opinion. BRANCH & BRANCH, for proponents. JAMES P. SANDERS, for contestant. THE SURROGATE.-I think, from the testimony, there is GUGEL V. VOLLMER. no question but that the will of Moritz Vollmer was properly executed, and that the only questions left for me to consider are, First. Was there any undue influence exercised over the testator in the execution of the will? The only evidence offered in support of that position was the letters written by the testator in 1874 to Mrs. Gugel, a daughter by his first wife, and her statement that Mrs. Vollmer, the testator's wife, said, in 1874, that she would do all in her power to save the property for herself and children, but this statement was contradicted by Mrs. Vollmer. I am of the opinion that it falls far short of the rule, which obtains in this State, that undue influence which will defeat a will "must amount to a moral coercion which restrains independent action and destroys free agency" (see Marx v. McGlynn, 88 N. Y., 357). Second. The will consists of six pages, four of which are marked across, as having been stricken out at some time after its execution, with a marginal note on each of the four pages, in the handwriting of the testator, “I pronounce this void, July 24, 1878." The question is now raised whether the portions so stricken out amount to a revocation of the whole will, or to the extent of so much as is crossed out, or must the whole be taken as the testator's last will? Section 42 of R. S., part 2, ch. 6, tit. 1, provides as follows: "No will in writing, nor any part thereof, . . shall be revoked or altered otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required |