People ex rel. Walker v. Albany Hospital. management of the corporation does not appear and is entirely immaterial. This is not a question as to the manner in which the governors have managed the affairs of the hospital. Its decision does not touch that point in the least. It is only a question whether the members of the corporation shall choose the governors, as the law says that they shall. The remaining objection taken by the defendants is that since the service of the papers they have ordered an election, and that, therefore, the mandamus is unnecessary. If, on the service of the papers for this motion, the defendants had simply given a regular notice for an election, I think there would have been good reason at least for suspending the decision in this case. But more than this has been done. By the by-laws, as they existed on the first Monday of August, 1871, it is declared that every member who has contributed fifty dollars or more by paying or securing the same, shall be entitled to one vote for each sum of fifty dollars. On August 26 a meeting of the governors was held, at which eight were present. At that meeting the by-law was amended by changing the day of the annual election from the first Monday of August to the first Monday of October, and it was declared that every member who had contributed fifty dollars or more, either in money, building materials or hospital supplies, should be entitled to one vote for each sum of fifty dollars, and the notice of election published is stated to be in pursuance of this resolution and amendment. The mode of publishing a notice of the annual election is also changed by this amendment to the by-laws from three newspapers to two. By the statute (1 Rev. Stat., 604, § 8), when an election is not held at the regular day, it is to be held in sixty days thereafter, and the persons who are to vote are those who are entitled to vote at the annual election. People ex rel. Walker v. Albany Hospital. If, therefore, this amendment of the by-law is valid, it changes the test of the right to vote at the election; and gives persons a right to vote who had not that right on the first Monday of August. There may be Besides, by 1 great doubt whether this can be done. Rev. Stat., 603, § 6, no amendment to a by-law relative to an election is valid until it has been published two weeks, thirty days before the election. And it would seem that this by-law cannot be published according to that statute the proper length of time prior to the appointed day. It is also questionable whether the right to an election within sixty days of the annual day can be thus taken away by a by-law. For if this by-law is valid, it is plainly in the power of the governors, before the first Monday of October, to amend the by-law again; appointing another and more distant day for the annual election. Thus they would prevent an election from ever taking place. It is insisted also by the relators that the meeting of August 26 was irregularly called for want of a specific notice of its object. With regard to the validity of this amendment to the by-law it is not necessary here to decide. Enough appears to show that there is doubt about it. The only notice of election is of one in pursuance of this resolution and amendment. If the election is held under that notice, therefore, the inspectors and the voters may be concluded, and may be prevented from asserting that the only proper voters are those who might have voted on the first Monday of August. That notice of an election cannot, therefore, be considered a compliance with the duty imposed on the governors,— that of giving notice of an election within sixty days after the day appointed for the annual election, in case that fails. I see no reason, therefore, why the mandamus should not issue. The time when the election shall be held Cottle v. Vanderheyden. within the sixty days, will be under the control of the governors; and the question of who shall vote at the election will remain for the future decision of the proper officers. Nothing that has been here said is intended to control or influence that question. Nor is the awarding of this mandamus any indication that the management of the hospital has not been in the highest degree wise and judicious. No evidence was produced on that point, and none would have been proper. It is to be hoped that when the members of this corporation shall have had an opportunity to express their wishes as to the persons who shall control, and when they shall have fairly done this, controversy as to this charity will be at an end. COTTLE against VANDERHEYDEN. GUARDIAN.-ADMINISTRATION.-POLICY OF STATUTE. The guardian of a minor son of an intestate is not entitled, under the provisions of 2 Rev. Stat., 74, §§ 27, 28, 33, to letters of administration, in preference to an adult daughter, whether in cases of intestacy or of administration with the will annexed. The policy of the statute is to grant administration directly to those most interested in the estate, and the appointment of representatives of persons entitled is purposely preferred to strangers only.* Joram Petrie died intestate, October 16, 1869, leaving as his only next of kin entitled to share in his estate, his adult married daughter, Fanny P. Cottle, the respondent, and a minor son, Charles L. Petrie. *See, also, Wickwire v. Chapman, 15 Barb., 302; Cluett v. Mattice, 43 Id., 417. N. S.−XI−2 Cottle v. Vanderheyden. The appellant, Levinus Vanderheyden, was appointed general guardian of the minor son, and subsequently obtained an order from the surrogate appointing him administrator of Joram Petrie, deceased, as being guardian of the minor son, in preference to Fanny Cottle, the adult daughter of the deceased, who had appeared and opposed objections to his ap pointment. From the order of the surrogate the daughter appealed to the general term of the supreme court, where the order was reversed (56 Barb., 622; S. C., 39 How. Pr., 289); and from the order of the general term the guardian of the minor son appealed to this court. Miles Beach, for petitioner, appellant. 0. O. Cottle, for objector, respondent. BY THE COURT.-CHURCH, Ch. J.-The only question in this case is whether the guardian of a minor son of an intestate is entitled to letters of administration in preference to an adult daughter. The decision must depend upon the construction of the several sections of the statute relating to the subject, which are contained in 2 Rev. Stat., 69. ch. 6, tit. 2. Section 14 of 2 Rev. Stat., 71, provides for granting letters with the will annexed, and prescribes the order of preference; first to legatees, then to the widow and next of kin of the testator or to any creditor, "in the same manner, and under the like regulations and restrictions, as letters of administration in case of intestacy." Section 27 of 2 Rev. Stat., 74, relates to cases of intestacy, and specifies several classes of persons entitled, and declares the order of preference, and then provides that if any of the persons so entitled be Cottle v. Vanderheyden. minors, administration shall be granted to the guardians. Section 28 (2 Rev. Stat., 74) gives males a preference over females who are otherwise equally entitled, and section 32 (2 Rev. Stat., 75) prohibits the appointment of minors. Section 33. "If any person who would otherwise be entitled to letters of administration as next of kin, or to letters of administration with the will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons." The theory of the appellant is that no provision is made in section 14 (2 Rev. Stat., 71), for the case of a person entitled, who is a minor, and that section 33 (2 Rev. Stat., 75) was inserted for that purpose, and therefore applies only to cases of administration with the will annexed, as provided in that section. This construction is not tenable. Section 14 does provide for minors, by expressly adopting the various regulations and restrictions, prescribed by the subsequent sections in cases of intestacy. The regulations and restrictions thus adopted are (so far as applicable to this point) that the next of kin are divided into several classes, having priority as specified in section 27; that guardians shall be appointed when any of the persons entitled are minors; that males shall be preferred to females; that minors shall not be appointed in any case. These provisions apply to letters granted to the next of kin under section 14, as directly and positively, as to those granted under section 27. There was, therefore, no necessity for section 33, for the purpose claimed by the appellant, of authorizing the appointment of guardians of minors, in cases of letters with the will annexed. That authority was expressly conferred by section 27 in cases of intestacy, and adopted by section 14 in cases of administration with the will annexed. |