Shomo's Appeal, 57 Pa. 356

Shomo's Appeal

57 Pa. 356 | Pa. | 1868

The opinion of the court was delivered, by

Strong, J.

If the widow’s renunciation of her right to administer be regarded as having been absolute, the register had a right to grant letters of administration to any one of the sons of the decedent. Within that class the law left to his discretion to make a selection. He was not bound to prefer an elder to a younger son. Our Act of Assembly makes no distinction between those in the same class. It may be a convenience, but it is not a requisition that seniority shall be regarded. But when the register had exercised his discretion, when he had made a choice among the sons, his discretion was gone. It was no longer in his power to revoke the letters granted, and issue them to another, unless for cause. Undoubtedly a register may revoke letters granted to one belonging to the class entitled to administration, if the grantee have a personal disqualification. This was ruled in Bieber’s Appeal, 1 Jones 157. When, however, an appointment has been made and the appointee belongs to the right class, and has no personal disability, revocation of the appointment by the register is a transgression of his power.

In this ease it appears that there was a widow of the decedent. Hers was the first right. But she renounced in favor of her son William D. Shomo, who was also a son of the decedent, and the register granted letters of administration to him. He subsequently revoked the letters thus granted, and granted others to Charles M. Shomo, an elder brother. After a careful review of the evidence, we discover no cause for such a revocation, nothing that justified it. The causes assigned are two. The first is that the letters issued to William D. Shomo were procured by misrepresentation. Of this there is no satisfactory evidence. The register states William Shomo represented that the other sons knew letters would be taken, and made other representations, from which he understood the other sons were all agreed that letters should be granted to him. What the other representations were does not appear, but the register states that being assured he could select from the sons any one competent to administer, that an older son had no priority where the interests were equal, and being informed that the other sons were aware letters would *359be granted, he granted them. He adds that it appeared to him the other sons did know that letters were to be taken out by the widow and William jointly, but there was no proof Charles knew William would take them out alone. These are but two unsworn statements, and they are far beyond what was sworn to in the .Register’s Court. But giving them their fullest effect, they come far short of proving any fraudulent representations by William D. Shomo, and it is manifest that it was not for this cause, nor for the other urged here, that the letters were revoked. It is altogether probable the register thought he had made a mistake in granting them to a younger son, without the assent of an elder one. Such a mistake, if it was one, was a mistake of discretion, not of power, and hence it was irremediable after it was made.

The second cause urged upon us to justify the revocation of the letters is, that William D. Shomo was personally disqualified. It is said he transacted business for his father before his decease. This, it is said, rendered him incompetent, and we are referred to those cases in which it has been held that letters ought not to be granted to an heir who has the principal part of the estafe in his hands, or who is a litigant with the estate: Bieber’s Appeal, supra; Ellmaker’s Estate, 4 Watts 38; Hassinger’s Appeal, 10 Barr 454. These cases are totally unlike the present. William D. Shomo was not a litigant with the estate, nor, as it appears, had he any interests adverse to those of the other heirs. The fact that he had done business for his father was no disqualification. This is very plain when we observe what the business was, which it was alleged he had done. He went to Philadelphia, to Reading and to other places for his father, and this is all. If such acts disqualify a son for administering upon his father’s estate, most dutiful sons are disqualified, and administration must often go into the hands of strangers, to the exclusion of the next of kin.

There was then no cause for the revocation of the letters granted to William, and certainly none for granting them to Charles. The register transcended his power after he had made a selection among the sons.

And even at first, when it was an open question, William should have been preferred to Charles, as he was. Saying nothing of the fact that he was the choice of six of the eight children of the decedent, he was the nominee of the widow. She released her right to the administration to him. This the register was not at liberty to disregard. In Ellmaker’s Estate, 4 Watts 34, it was said that the register is bound to respect the nomination of the next of kin, or persons entitled to the administration. The same thing was said, in effect, in Bieber’s Appeal. The personal fitness of William is proved beyond question.

But more than this, the widow’s release or renunciation stood *360in the way of the revocation of the letters first granted, and a grant of others to Charles M. Shomo. Her release was not an absolute renunciation. It was no more than conditional. If letters were granted to William it became absolute, if not, her right to administer remained. Such is the doctrine of Model Ian’s Appeal, 4 Harris 116. The decree of the Register’s Court must therefore be reversed.

It is ordered, adjudged and decreed that the decree of the Register’s Court, affirming the decree of the register, which revoked the letters of. administration granted to William D. Shomo, be reversed, and the said letters are hereby affirmed. And it is further decreed that Charles M. Shomo pay the costs.