Owings v. Bates

9 Gill 463 | Md. | 1851

Frick, J.,

delivered the opinion of this count.

The controversy here between the parties involves the right to the administration of an intestate’s estate. The- deceased left three sisters and one brother. The sisters, all except the appellee, were married, one of them being the wife of the appellant. The record shows, that it. was agreed at an interview between all the parties, that the appellee, as the eldest distributee, should administer the estate, the appellant be.ng at the time present and disclaiming all right or intention to apply for the administration. The whole estate of. the intestate is comprized in a promissory note for $1636, drawn by the appellant himself in favor of the intestate! The note having some years to mature, and there being no urgent necessity to hasten the administration, the appellee left the State upon a 'temporary sojourn in the District of Columbia. Her purpose to return and apply for the administration was expressed and understood before she departed on the 26th of December, and was reiterated by her letter of the 28th of the same month, to the appellant’s wife, in which she affirms the intention of returning with that view in the course of the ensuing month. But upon the 6th of January following, the appellant applied to the Orphans court of Howard District of Anne Arundel county, and without any knowledge of the agreement, or of the claim of the other party, the court upon his application granted the letters of administration to the appellant.

Upon this state of facts, upon petition of the appellee representing the violation by the appellant of the agreement entered into by the heirs, and the action of this appellant in the matter against the consent and wishes of the parties, (which is signified by their protest in the proceedings,) and insisting upon the incompatibility of confiding to the only debtor of the estate, the administration of the assets, the orphans court revoked the letters sued out by the appellant, and the administration was committed to the appellee. Prom this order thus revoking his administration, the appeal is taken to this court.

It is true, that the appellant in his answer insists that the estate is indebted to him. But when the record discloses that his claim is for the board of the deceased from the year 1828 to the period of her death, and that his note for a large sum of money in her favor is but of recent date, (the 15th of November 1848,) the case presents an aspect, which in the attitude both of debtor and creditor to the estate, renders it highly derogatory to sound principles of justice, that the adjustment should be committed to the party who stands in that relation to the other parties interested in the assets.

We must assume that, with a knowledge of this state' of things, the orphans court would have declined to confide this administration to the appellant, independent of the agreement to which he was at least a witness, if not a party, by his disclaimer. But without any such agreement the appellee was the party entitled to this administration, and could only have been excluded, upon the representation or impression of an indefinite absence from the State. Such however was not the fact, as is indicated by her immediate return in the same month of January; and under all these circumstances the grant of 'letters to the appellant was premature and improvident. Without the consent or withournotice to the other parties, the application ought not to have been made, for without this the appellant was not entitled to supersede the appellee in her rightful claim to the administration. And when with a full exposition of all the facts, the orphans court have afterwards deliberately revoked their original grant of these letters and placed the administration in the hands of the party legally entitled in preference to the appellant, we do not feel authorised or disposed to disturb their decree, which is therefore affirmed.

DECREE AFFIRMED.