73 Md. 232 | Md. | 1890
delivered the opinion of the Court.
The appeal in this case was taken from an order of the Orphans’ Court of Prince George’s County granting to R. Irving Bowie, and refusing to grant to Francis M. Bowie, letters of administration de bonis non cum testamento annexo on the estate of William B. Bowie, deceased. The appellant and the appellee are brothers, the one the fourth, and the other the youngest, child of the testator. Upon the death of William B. Bowie letters testamentary were granted to his widow, the executrix named in his will. After her decease the Orphans’ Court appointed the appellee administrator de bonis non ; hut a petition being filed by the appellant and two elder brothers, wherein administration was claimed by the appellant, that order was revoked, and subsequently, all the other children, except the appellant and the appellee, having renounced any claim to administer and all being before the Court, the Orphans’ Court again appointed the appellee and dismissed the petition of the appellant. From that order this appeal was taken.
It is contended by the appellant that because he is older than the appellee he is under the law absolutely entitled to letters of administration in preference to the latter. Whether this is so or not is the sole question in the case, and the solution of that question must he sought for in the statutes of' this State, and nowhere else.
By sec. 70 of Art. 93 of the Code it is provided that “if an executor or administrator shall die before administration is completed, letters de bonis non or de bonis non cum testamento annexo may he granted at the discretion
It is perfectly true that the Orphans’ Court is a Court of strictly limited jurisdiction, and that its jurisdiction cannot be extended or enlarged by implication. It is equally true that but little is left to its discretion. Still, it seems to us clear that the Legislature intended to vest in that Court the power to single out and appoint, without regard to seniority in age, one of a class
It has been earnestly argued that some expressions found in the opinion of the Court in Stocksdale and Wife vs. Conaway, Adm’r, 14 Md., 99, establish a priority on account of age. But we do not think so. In that case Henry Cover appointed his son-in-law, Reuben Conaway, executor. He left a son, Josiah S. Cover, and two married daughters, Susannah Conaway, wife of Reuben, and Elizabeth Stocksdale and a grand-daughter, the child of a deceased daughter. The executor died before fully administering the estate, and the Orphans’ Court, upon Josiah S. Cover, the son, filing a renunciation, appointed John H. Conaway, son of the deceased executor, administrator de bonis non. Sixty-eight days thereafter Mrs. Stocksdale and her husband filed a petition in the Orphans’ Court praying that these letters be revoked, and asking that she be appointed. This the Orphans’ Court refused to do, and an appeal was taken to this Court. In the course of the opinion it was said, “Josiah' S. Cover, who was entitled (being the eldest male child of the deceased) to letters de bonis non, filed, in the Orphans’ Court a renunciation, &c. ” Now, Josiah S.
As the appellant and the appellee were both sons of the testator and had both applied for letters de bonis non, and as all the other sons had renounced, it became the duty of the Orphans’ Court, in the absence of any statutorjr provision preferring one to the other, to determine in its discretion to which of the two those letters should be issued. The Orphans’ Court exercised that discretion, and from its order, in this respect, no appeal will lie to this Court. It follows as a consequence that the appeal must be dismissed, and it is so ordered.
Appeal dismissed, with costs.