Kearney v. Turner

28 Md. 408 | Md. | 1868

Bartol, C. J.,

delivered the opinion of this Court.

In disposing of this appeal, it is unnecessary to express any opinion upon the effect of the renunciation of William E. Turner, or the power of the Orphans’ Court to allow its withdrawal. Conceding that the appellee is correct in the view that under the circumstances, there was no error in permitting the renunciation to be withdrawn; then the question is presented as between the appellant and appellee, which of them is entitled to the administration. The solution of this question depends upon the true construction of the provisions of our testamentary law regulating the right of administration. Both the contestants are first cousins of the intestate, Dr. David Craufurd; the appellant being related on the side of his father, and the appellee on the side of his mother. By the Code, Árt. 93, sec. 22, it is provided “ that if there be neither widow, nor child, nor grand-child, nor father, nor brother, nor sister, nor mother, the next of kin shall be preferred.” By the subsequent sections rules are prescribed, fixing the order of preference among next of kin. The appellee claims to be entitled under the 23d sec. which declares “ that males shall be preferred to females in equal degree of kin.” While the appellant claims under the 29th sec., which provides that “relations on the side of the father shall be preferred to relations on the side of the mother in equal degree.” These rules are supposed to be in conflict. It is very apparent, if the appellant and appellee stand in equal degree of kin to the intestate, in the sense in which those terms are used in the 22d section, there would be some difficulty in reconciling those two provisions of the Code. Being inconsistent, one or the other of them would have to he disregarded in this case, unless we should adopt the. view of the appellant, and say that by the 29th section, relations on the part of the father are designated as a preferred class, (while section 23 must be construed as referring to indiyiduals, and not to a class; thus all persons related on the side of the father, whether male or female, are preferred to relations in equal degree on the side of the mother, while as among persons belonging to the same general class, that is, among those related on the side of thé father, or on the side of the mother, males are preferred to females. This is a reasonable construction, consistent with the language of the law, making its several provisions consistent with each other, and giving them all their proper operation and effect. We do not rest our opinion, however, upon this construction alone. In our judgment the term “ next of hin ” as used in the 22d section, is to be understood in its legal sense as meaning hindred, the word used by the law of descents. Code, Art. 47, sec. 1; and importing heirs-at-law, relations by consanguinity, or of the blood of the decedent.

The provisions of the Code regulating the right of administration follow very closely the law of inheritance, which is departed from in several particulars in the statute of distributions. Construing the words next of hin, in the 22d sec. of the 93d Art., as meaning kindred, or heirs-at-law, which we think is its real signification and import, it follows that under that section, as well as under the 29th section, the appellant would be entitled to the preference over the appellee in right of administration. The application was for administration, de bonis non, the first administrator having died; and we have been referred by the appellee to the 70th section of Art. 93, which, it is contended, gives power to the Orphans’ Court to appoint, within its discretion, among collaterals related in the remote degree which these parties held to the deceased. That section provides “that letters de bonis non may be granted at the discretion of the Court giving preference, however, to the person entitled, if he shall actually apply for the samo.” It has been argued that the terms “ person entitled,” as used in this section is to be construed as applicable only to those near relations enumerated in the 33d section, as absolutely entitled; a,nd not as referring to the more remote relations, who, by that section, are declared not to be considered as entitled unless they shall apply. "We do not concur in this view. The whole Article of the Code must be construed together. As by the 22d section it is expressly provided that among collaterals the next of kin are to be preferred, without regard to the remoteness of their relationship, it seems to be clear that where such next of kin makes application for letters de bonis non, she being by law the person entitled on application, such letters ought to be granted to her and cannot properly be refused at the discretion of the Court.

The evidence offered by the appellee showing that the ap- • pellant was indebted to the estate of the deceased, did not furnish any sufficient ground upon which the Orphans’ Court was authorized to deprive her of the administration. This point was expressly decided in Cook vs. Carr, 19 Md. Rep., 1. Upon the exceptions to the ruling of the Orphans’ Court taken by the appellee, this Court is of opinion that there was no error. By the Code, Art. 93, sec. 56, the mode is prescribed, in which the Orphans’ Court may have the question of alleged uusoundness of mind of a party entitled to administration, tried and determined, by issuing a writ de lunático inquirer) do; that Court had no power to examine proof on that subject, or to try and decide the question. Being a Court of special jurisdiction it is prohibited from exercising any constructive or incidental powers not expressly conferred by law. Art. 93, sec. 252.

The Code having directed the manner in which such questions are to be tried and determined, the Orphans’ Court was correct in refusing to entertain the inquiry in any other way. The order of the Orphans’ Court granting letters to William E. Turner, will be reversed with costs to the appellant, and the cause remanded for further proceedings in accordance with the opinion of this Court.

(Decided 20th March, 1868.)

Order reversed and cause remanded.