Carpenter v. Jones

| Md. | Jun 15, 1876

Brent, J.,

delivered the opinion of the Court.

But few cases can arise in this .State, where the appointment of an administrator is within the discretion of the Orphans’ Oourt. The person entitled is generally designated by our statute, and when so designated the requirement of the statute must be strictly obeyed. Smith and Wife vs. Young, 5 Gill, 197 ; Nusz, et al. vs. Grove, 27 Md., 400; Kearney vs. Turner, 28 Md., 423. Relations in the order and within the degrees specified, are first entitled. If no relations, then administration is to be granted to the largest creditor applying. Art. 93, sec. 30. If there are no relations, and no creditors applying, then the grant of letters is in the discretion of the Orphans’ Court.

In the present case, the deceased, so far as known, left no relations, and the question presented by this appeal is whether or not the appellant, who claims to be a creditor, ought to have been appointed by the Orphans’ Court of Howard County.

No other creditor seems to have applied., and as the appointment of the appellees, was made in point of time as required by sec. 16, Art. 93, the letters granted to them will not be revoked, unless the appellant is found to have been entitled.

In the case of Stocksdale and Wife vs. Conaway, Administrator of Cover, 14 Md., 99, Josias H. Cover, who was entitled to administration, filed his renunciation in the Orphans’ Court, “desiring at the same time, that letters might be granted to John H. Conaway.” Letters were accordingly granted to Conaway, when Mrs. Stocksdale, the person next entitled after Josias H. Cover, filed a petition for their revocation. Josias H. Cover then offered to withdraw his renunciation, and asked that letters might be granted to him, in the event of the letters of Conaway being revoked.

It was urged in the argument that his renunciation was conditional; and his right to withdraw it, and claim the administration as against Mrs. Stocksdale, was one of the questions decided by the Court. It was held, that having made Ms election to decline tlie administration it was final and could not be retracted or abandoned. The case of Thornton vs. Winston, 4 Leigh, 152. was cited as authority, and the doctrine there laid down approved.

On the 17th of August, 1875, the appellant filed in the Orphans5 Court the following paper :

“Elkridge Land., Md., Aug. 16th, 1875.

To the Hon. the Judges O. O.

The undersigned, the attending physician to the late James Stratton, takes great pleasure in impressing the Hon. Court that during his attendance on the said James Stratton, he expressed himself as confiding in the Rev. Mr. Jas. H. Davis, he having used this language or to the effect, f that he had more confidence in Mm, the said Revd. James 1ST. Davis, that while others came to take from him, Revd. Mr. Davis came as company, and he would do Mm justice.5

“The undersigned having a bill of $266.50, and representing the interest of the consulting physician, Dr. D. Atkinson, of the City of Baltimore, $50.00, the two being the largest claims against the said estate as far as known to tlie undersigned, would ask the appointment of Revd. Mr. Jas. 1ST. Davis as administrator of said estate.

Most respectfully,

A. W. Carpenter, M. D.”

Sec. 38, Art. 93 of the Code provides that “if any person entitled to administration shall deliver or transmit to the Orphans5 Court a declaration in writing that he is willing to decline the trust, the Court shall proceed as if such person were not entitled.55 The Orphans’ Court construed and as we think correctly, the paper referred to, as a declaration by the appellant of his willingnesss to decline the administration. In stating that he is the largest creditor, he clearly indicates that he is entitled to administration, and his recommendation of another cannot be understood in any other light than an abandonment of his claim. In the case in 4 Leigh, where the renunciation was an agreement that administration should be granted to another, Tucker, J., says “Now this agreement by an executor, that another shall qualify as administrator, amounts of course to a refusal of the executorship.” We do not understand that a different construction can be given to the language used by the appellant. His agreement and recommendation, that another shall be appointed administrator, necessarily presuppose that he himself declines the trust. The argument that he cannot decline until after he applies is not sound. It would be an anomaly to require a party to petition for a trust and ask that it may be conferred upon him, so that almost the next instant he may be enabled to say he does not desire it and will not accept it. Such a course of proceeding could not be sanctioned, for the Courts require that every application and petition presented for their judgment should be made in good faith.

Upon the authority of the case of Stocksdale and Wife vs. Conaway, Adm’r of Cover, cited above, we must construe the paper above referred to, to be in legal effect a declaration by the appellant of his 'willingness to decline the administration, and hold such declaration to be final and irrevocable.

It follows, that the Orphans’ Court in granting .letters of administration on the 8th day of September, 1815, had full power to proceed in doing so, as if the- appellant “were not entitled.” Their order of that date will therefore be affirmed.

On the 20th September, the appellant filed a petition for the revocation of the letters which had been granted by the order of the 8th, upon the ground of mistake in the paper filed by him on the lUk of August. This petition was dismissed by an order of the Orphans’ Court on the 5th day of October, 1875 ; and from this order an appeal has also been taken.

(Decided 15th June, 1876.)

The mistake complained of, is a mistake in law — being the legal effect of the paper. There is no mistake of fact relied upon and cannot be. The paper was written by the appellant, and the facts and statements contained in it are not alleged to be erroneous, and otherwise than stated. Mistake in facts will always be remedied by the Courts as far as' can be done consistently with right and justice — but where the mistake is purely a mistake in law, they refuse to interfere.

The case of Thomas, Adm’r of Young vs. Knighton, 23 Md., 327, is relied upon as authority in support of this petition. The printed report does not set out the mistake under which it is alleged Mrs. Young executed her renunciation in that case. But by referring to the record, it is found to be a mistake of fact, the allegation being ‘ ‘ that she did not know when she signed said paper what it was, but she was led to believe from what said Thomas told her that it was of a different purport from what it really is.” The case is therefore wholly inapplicable, the mistake relied upon, not being, as in the case before us, a mistake of law.

The order of the Orphans’ Court of the 5th of October, 1875, will therefore also be affirmed.

Orders affirmed.