In re the Probate of the Will of Waring

Silkman, S.

The testatrix has by her will admitted to probate appointed a guardian for her minor children other than the father, the latter being alive.

The appointee files the usual oath and asks the issuance of letters of testamentary guardianship, but the application cannot be granted.

The Domestic Relations Law, article V, section 51, provides jin ,part as follows: “Upon the death of either father or mother, the surviving parent, whether of full age or a minor, of a child likely to be born, or of any living child, under the age *474of twenty-one years and unmarried, may, by deed or last will,…