| Md. | Jan 25, 1884
delivered the opinion of the Court.
Mrs. Sarah A. Griffith died in 1877, leaving a paper purporting to be her last will and testament, to the probate of which a caveat was filed, and upon issues sent to the Baltimore City Court, a verdict was rendered in favor of the caveators. At the trial, exceptions were taken to the rulings of the Court, and upon appeal, these rulings were reversed, and a new trial awarded. The case was
It thus appears, a period of six years elapsed before the question of intestacy was finally determined.
At the time of her death, Mrs. Griffith left five children, one son, and four married! daughters. Pending the litigation, the son, and the husband of the appellee, Mrs. Coleman, one of the daughters, died. The sole question in this appeal is whether the appellee, Mrs. Coleman, being the only daughter unmarried, is entitled to letters of administration ? And this depends upon sec. 27, Art. 93, of the Code, which provides that,
“A feme sole shall be preferred to a married woman in equal degree.”
If the priority of right is to be determined by the status of the parties at the time the application is made, then the appellee is unquestionably entitled to letters, because she was the only unmarried daughter at that time. But it is argued, that this right must be determined as of the time of the death of the intestate, and the four daughters being-married at that.time, the granting of letters was a matter resting in the discretion of the Court. We find nothing-in the Code to justify this construction. When administration is granted upon the death of the intestate, the order of priority must of course be determined at that time. If, from any cause however, the administration is delayed, and the party first entitled should die, then the next in preference would be entitled, and so on.
Now, in this case, pending the decision of the question of intestacy, the son, first preferred, died, and then the husband of the appellee, Mrs. Coleman, and when it be
The statutes of 31 Edw. III, ch. 11, and 21 Hen. VIII, ch. 5, sec. 3, differ so widely from the provisions of our Code in regard to administration, that the decisions of the English Courts afford us but little aid in the determination of the question before us. Under these statutes it was in the discretion of the Ordinary to grant letters to the widow, or to the next of kin, or to both. If all those who were next of kin at the time of the death of the intestate, died, the English Courts held, that the representative of such next of kin was entitled. And why ? Because prior to the Statute of Distributions, 22 and 23 Car. II, ch. 10, the administrator was entitled to the entire surplus, after the payment of debts, and the next of kin being entitled to administration, and thereby having a beneficial interest in the effects of the deceased, the representative of such next of kin was preferred. The decisions are all based on the ground of beneficial interest in the representative of such next of kin. Savage vs. Blythe, 2 Hagg. App., 150; Almis vs. Almis, Ib., 155; Palmer vs. Allcock, 5 Mod., 58; Rex vs. Hay, 1 W. Black., 641.
The administrator in this State has no beneficial interest in the personal property of the intestate, and merely holds it in trust for the payment of debts, and for distribution •among the parties entitled. So the argument from analogy fails. The appellee, Mrs. Coleman, being the only daughter unmarried at the time application was made, we are of opinion that she is entitled to letters of administration, and the order appealed from will, therefore, be affirmed.
Order affirmed.