145 A. 355 | Md. | 1929
Thomas B. Horton died intestate on August 28th, 1928, in Baltimore City, Maryland, the place of his domicile. He *129 left to survive him Grace H. Horton, his widow, and Thomas B. Horton, Jr., and Marie G. Gischel, children of a former marriage. On September 1st, 1928, the day after his funeral, the widow applied for, and was by the Orphans' Court of Baltimore City granted, letters of administration on his estate, and on September 13th, 1928, his two children filed a petition praying the court to revoke the letters granted to Mrs. Horton, and to appoint her with Mrs. Gischel as co-administratices of the estate, or to appoint her as co-administratrix, on the ground that they had had no notice of Mrs. Horton's application nor any opportunity of presenting to the court reasons why they or one of them should be allowed to administer the estate, and that therefore the grant of letters was premature and improvident. Mrs. Horton answered the petition, and the matter was set for a hearing before the Orphans' Court of Baltimore City on October 19th, 1928. At the hearing the court refused to allow the petitioners to offer evidence in support of their petition, but, after hearing counsel for the respective parties, passed an order dismissing it. This appeal is from that order.
In addition to the petition and answer the record contains the following stipulation of fact: "The parties were present in court with their counsel and witnesses, there was no stenographer, but one was sent for; thereupon the court proceeded to listen to argument of counsel upon the petition and answer and after hearing such argument announced its decision, counsel for the petitioner having offered to put his witnesses on the stand to prove that the petitioners had no notice of the application for letters and the administratrix having offered to prove with her witnesses that notice had been given to them, but the court said that they had reached a decision and did not care to hear testimony."
The main question submitted by the appeal is whether the orphans' court acted improvidently in granting letters of administration to Mrs. Horton, without having notified the appellants, both of whom resided within its jurisdiction, of her application. Subsidiary to that is the propriety of the *130
unusual procedure followed by the court in refusing to allow the petitioners to offer evidence in support of their petition. In the appellee's brief it is asserted that the effect of that procedure was to set the case for hearing on petition and answer, but obviously that is a fallacy. While there are no formal pleadings in orphans' courts (Munnikhuysen v. Magraw,
In the case last cited Judge Boyd for this court said; "We have not deemed it necessary to examine the records in the various cases in this state to ascertain how far it can be said that the general practice is to file replications in the orphans' court, but in the recent case of Gallagher v. Martin,
In this case it is conceded that both the petitioners and the respondent offered to submit evidence supporting the petition and answer respectively. By so doing they treated the case as at issue, and the respondent waived any right she may have had to take advantage of the petitioner's failure to file a replication. The court, therefore, in hearing the case on petition and answer, acted improvidently, and in considering the propriety of its ultimate decision the allegations of the petition will be taken as admitted for the purposes of this appeal.
The next question is whether the court acted improvidently in granting letters to Mrs. Horton without notice to the appellants. Whether it did or not depends upon the construction to be given Code, art. 93, sec. 18, and sec. 32. The former section creates a class of eligibles in cases where the decedent leaves a husband or widow and children, to any one of whom the court may in its discretion grant letters. The section last cited provides that "it shall not be necessary to give notice to a party entitled to administration if he be out of the state, nor shall it be necessary to summon or notify collateral relations more remote than brothers and sisters of the intestate, in order to exclude them from the administration; and no relations, except a widow, child, grandchild, father, brother, sister or mother shall be considered as entitled unless they shall apply for the same." If the language of that section has any meaning at all, it is that, where children of the decedent residing within the *132
state are members of the class entitled to preference in the grant of letters, they are entitled to notice before any letters of administration on the estate of their decedent are granted, unless they voluntarily appear, or unless in some way they waive that right. This court, in construing that section (then section 33), said in Dalrymple v. Gamble,
Upon the statute, as construed by these cases, it is in our opinion clear that letters should not have been granted to the appellee unless and until the appellants had been summoned or notified of the intestacy of the decedent, and given an opportunity of applying to the court for a grant of letters of administration to them or either of them, or they had waived that right. But it appears from the petition that, not only were they not summoned or notified, but that they were actually misled by the appellee into believing that no steps would be taken until she had seen them and arranged for an amicable settlement of the estate. Under such circumstances the grant of letters to Mrs. Horton was premature and improvident.
But appellee contends that the court in granting letters to Mrs. Horton, who was a member of a class entitled to preference, acted in the exercise of an irreviewable discretion, and that the failure to notify appellants was either an error of no consequence, or at least one that cannot be corrected by *133
this court; but in that they are mistaken. We are not called upon by this appeal to review the exercise of a discretion, but the failure to exercise it. The power given to orphans' courts to select and grant letters to one of a class entitled to administration is not a whimsical, an arbitrary, or an absolute discretion, but a judicial discretion, which must be exercised in accordance with the rules and forms of law as declared by the statute, and, while its acts done in the exercise of the discretion so reposed in it will not be reviewed by this court, its acts done in contravention or disregard of the plain letter and intent of the statutes prescribing the course it shall pursue in exercising that discretion will be reviewed. When section 18 provides that the court may at its discretion grant letters to a child or to the husband or widow as the case may be of the intestate, it means that the court shall actually exercise a discretion, and that it shall make its choice after considering the relative merits and fitness of the applicants, and their respective claims to consideration, and not that it may act without regard to such consideration, solely at its pleasure or caprice. Thomas, Admr., v. Knighton,
Dorsey v. Dorsey,
In our opinion, therefore, the court erred in refusing to permit the appellants to offer evidence in support of their petition, and it will be necessary to reverse the order appealed from and remand the case for further proceedings in accordance with the views expressed in this opinion.
Order reversed and cause remanded for further proceedings inaccordance with the views expressed in this opinion, costs to bepaid out of the estate. *136