In re Estate of Neidig

Opinion by Mb. Chief Justice Stebbett, This appeal is from the decree of the orphans’ court vacating “ the letters of administration which were issued to H. M. Rupley, Esq., in the estate of Emanuel Neidig, deceased,” and [497] ordering “ tliat letters in said estate be issued by the register of wills to Jacob S. Meily, who is a suitable person, and the nominee of the next of kin, upon his entering into bond with sureties as required by law.” The facts of the case, together with the questions of law arising thereon, are clearly and concisely stated in the opinion of the learned president of the court below, and need not be recited here. In his argument the appellant says : “ There are no disputed facts so far as this appeal is concerned, and therefore the testimony taken before the register of wills is not printed.” He also “ frankly admits that the petitioners, the Oeker family, are the next of kin, and the letters issued to Mr. Rupley were improvidently granted, and would have been revoked by the register had any of said next of kin been competent and applied for said letters.” The reasons thus stated as a justification of the register’s refusal to vacate the letters admitted to have been improvidently issued to appellant are frivolous and unsound. The issue before the register involved neither the competency of the next of kin to administer, nor their demand that letters issue to them, or some of them, or to their nominee. For good and sufficient reasons set forth in their petition, the prayer thereof was that the letters impi-ovidently granted to the appellant in this case be revoked. In his answer, he denied that the letters were improvidently granted to him, and averred that those by whom he was nominated were the next of kin of the intestate, and that the petitioners were not such next of kin as are entitled to administer, etc. Under the issue thus presented, as soon as it was shown that the persons who nominated appellant were not the next of kin, and that the petitioners were, it was the clear duty of the register to revoke the letters granted to appellant. That would have cleared the way for an application by some of the petitioners or their nominee. The only orderly-mode of proceeding was for the register to determine first whether the letters to appellant were or were not improvidently granted. It would have been premature for the next of kin to have demanded the issue of letters to themselves or their nominee until the register had first revoked the improvidently granted letters; but, as we understand, the register went outside of the questions involved in the issue before him and decided that because the next of kin were incompetent to administer, etc., the [498] ■letters improvidently granted to appellant should not be revoked. “This was simply undertaking to prejudge what was not then properly before him, and perhaps never would have been if he had rightly decided the questions that were strictly involved in the issue without more : but he undertook to fortify his refusal to vacate the improvidently granted letters by deciding that none of the next of kin was competent to administer, etc. For reasons clearly and concisely set forth in his opinion, the learned judge found the facts as now conceded to be correct, viz : “ That the Ocker family are the next of kin, and the letters issued to Mr. Rupley were improvidently granted,” etc., and he accordingly vacated said letters. He might have stopped there and left to the register of wills the granting of letters to one or more of the next of kin, but clearly he was not bound to do so. It was doubtless evident to him, as it is to us, that the questions that might again arise before that officer had not only been prejudged, but were erroneously decided by him. Owing to the manner in which the case appears to have been heard and disposed of by the register, those questions were brought before the court below. It was therefore entirely proper to incorporate in the decree the order that letters be issued by the register to the nominee of the next of kin, etc. The appellant having been rightly ousted from the office into which he was inducted with at least indecent haste has no right to interfere with the granting of letters to any of the next of kin or their nominee. In view of the clear and satisfactory manner in which the questions involved are disposed of in the opinion of the court below further elaboration is unnecessary. Decree affirmed and appeal dismissed at appellant’s costs; and it is ordered that the record be remitted to the court below.