MATTER OF SEXTON. September 1, 1880, "subject to the qualifications " contained in certain "foregoing sections." The "foregoing sections" referred to, so far as relates to the matter under discussion, are section 3352, which has already been discussed, and section 3347. Section 3347 declares that so much of chapter 18 as "regulates the proceedings to be taken in an action or a special proceeding," and the effect thereof, applies only to an action or a special proceeding commenced on or after the first day of September, 1880. [To this rule certain exceptions are specified, but the sections referring to costs in Surrogates' courts (sec. 2557 to sec. 2567, supra) are not within the exceptions.] So far, therefore, as concerns cases originated in this court before September 1, 1880, the Code provisions authorizing costs and allowances, and fixing the standard of taxation, are not applicable, if it can justly be claimed that those provisions are "regulations" of the "proceedings to be taken in a special proceeding," and of "the effect thereof." What is the meaning of the word "proceedings," in the phrase just quoted? It seems to me that the term is substantially equivalent to the expression "modes of procedure;" and that the whole phrase "proceedings in a special proceeding" means the forms by which the various steps in a special proceeding are conducted. As applied, for example, to the subject of taxation of costs, an application for an allowance of costs in this court is doubtless "a proceeding in a special proceeding." If the repealed statutes prescribed any forms or modes of procedure in the matter of applications for costs, these forms and modes must still prevail, so far as relates to MATTER OF SEXTON. cases begun on or before the 31st of August, 1880. But the determination of the question whether there exists any right to costs, and, if any are to be accorded, the ascertainment of their amount-these are not in any sense matters of procedure. And the provisions of the present Code declaring under what circumstances costs may be allowed, and what shall be the limits of such allowance, are not provisions which regulate the proceedings to be taken in a special proceeding. I hold, therefore, that, ever since September 1, 1880, those provisions have been in full force, and applicable to all cases, no matter when this court first acquired jurisdiction in the premises. This view is in harmony with the decision of Judge Duer, in Rich v. Husson (1 Duer, 617). In section 303 of our first Code of Procedure, there was a provision in the following words: "All statutes establishing or regulating the costs or fees of attorneys, etc., are repealed." Unless these words had been somehow restricted, they would manifestly have operated to extinguish all claim to costs based upon laws in force before the Code became effective. Section 8 of that Code declared that part 2 (and section 303 was therein included) "relates to civil actions commenced in the courts of this State after the first day of July, 1848, except when otherwise provided therein." The significance of this provision was indisputable, though it was awkwardly worded. It meant that the Code provisions in question should apply, not only to actions commenced after July 1, 1848, but, within certain limitations, to actions previously commenced. Certain of those limitations were set forth by section 459, MATTER OF SEXTON. as amended in 1851, in these words: "The provisions of this act apply to future proceedings in actions or suits heretofore commenced and now pending as follows: (1). Where there has been no pleading 'to the pleadings and all subsequent proceedings.' (2). Where there is an issue to be tried to the trial and all subsequent proceedings."" ever. It was insisted, in the case of Rich v. Husson, supra, that the entry of judgment and the taxation and adjustment of costs, involving of course the questions of the right to costs and the amount thereof, were "proceedings" in the cause, and that, as the Code provisions were applicable to such "proceedings," it was only by apply ing those provisions that the questions thereby involved could be determined. The court held otherwise, howSays Judge Duer: "The rules by which proceedings are governed are rules of procedure; those by which rights are established and defined are rules of law. It is the law which gives a right to costs and fixes their amount. It is procedure which declares when and by whom the costs shall be adjusted or taxed." This decision was at once accepted as a correct exposition of the law, has since been repeatedly cited, and always with approval (Connoly's N. Y. Citations, 748; Matter of Mace, 4 Redf., 325). The costs in this matter must, therefore, be adjusted according to the provisions of the present Code. Ordered accordingly. BUTLER V. PERROTT. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-June, 1882. BUTLER V. PERROTT. In the matter of the estate of JOHN BUTLER, deceased. A present right to participate in the distribution of the personal property of an intestate is not an essential qualification of one claiming, as a relative, letters of administration on his estate. The right, to such letters, of any person of the blood of the intestate, not disqualified, is superior to that of the public administrator. The provisions of R. S., part 2, ch. 6, tit. 2. § 27 (3 Banks, 7th ed., 220), enumerating, in order, the persons entitled to letters of administration in intestacy,-construed. THIS was an application in behalf of Sarah Butler and others, next of kin of decedent, for the revocation of letters of administration issued out of this court to Richard Perrott, nephew of decedent's grandmother. Further facts appear sufficiently in the opinion. LEO C. DESSAR, for Sarah Butler and her children. H. T. KETCHAM, for Richard Perrott. THE SURROGATE.-The decedent, who was late a resident in this city, died intestate in February last. Letters of administration upon his estate were thereafter issued out of this court to his grandmother's nephew, Richard Perrott. I am now asked to revoke those letters, upon the ground that Perrott is not lawfully entitled to them. Several persons have survived the decedent, who were far more nearly related to him than this respondentamong them are his mother, two brothers and a sister. BUTLER V. PERROTT. If immediate distribution were made of his estate, these near relatives would be entitled, under our statute of distribution, to succeed thereto, to the entire exclusion of this respondent and of everybody else. But it happens that none of these persons, thus entitled to distributive shares, are citizens of the United States, or reside within the State of New York. They are, therefore, legally incapable of receiving letters of administration (Rev. Stat., part 2, chap. 6, title 2, sec. 32; 3 Banks, 7th ed., 2291). With the exception of the respondent's mother, Mrs. Ann Perrott, he himself is the nearest relative of the decedent who is not disqualified by alienage from administering on this estate. Mrs. Perrott has filed a renunciation of her claim, so that her son's title to the letters is undisputed, so far as relates to prior rights of any relatives of the decedent nearer of kin than himself. It is insisted, however, that, as such nearer kindred are in existence, and, although aliens, are entitled to this estate to the exclusion of the respondent, he has no lawful right to the letters which have been granted, and should be required to surrender them to the Public Administrator. The claim rests upon a disputed construction of the statutory provision relating to the administration of estates (Rev. Stat., part 2, chap. 6, title 2, sec. 27). That provision is as follows: "Administration in case of intestacy shall be granted to the relatives of the deceased who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First, to his widow; second, to his children; third, to the father; fourth, to the mother; fifth, to the brothers; sixth, to the sisters; seventh, to the grandchildren; eighth to any other next of kin who would be entitled to share in |