Gans v. Dabergott

The Ordinary. Paul Dabergott, wlio was a resident and inhabitant of the city •of Orange, in Essex county, died at sea, September 1st, 1884, leaving a widow (the respondent) in Orange, where he carried on his business. He died intestate. His widow did not take out, nor apply for letters of administration upon his estate within fifty days from his death. On the 28th of October, 1884, fifty-seven days after Mr. Dabergott’s death, Isaac Gans, of Orange, claiming to be a creditor of the estate, made application for and obtained letters of administration. The widow had not then applied for letters, nor had she renounced her claim to administration. Nor did she request that Mr. Gans should be appointed. By his petition, Mr. Gans stated that the widow resided in Orange. No notice was given to her of the application, nor had she any knowledge of it. The letters were granted on the same 186 day on which the petition was filed. On the 15th of November, 1884, the widow appealed, to the orphans court of the county, from the order of the surrogate granting the letters. Mr. Gans, having been duly cited, and the appeal heard, that court reversed the order of the surrogate, and revoked the appointment of Mr. Gans, and granted letters to Mrs. Dabergott. From that order Mr. Gans appealed to this court. The letters to Mr. Gans were issued in disregard of the provisions of the rule of the orphans courts on the subject. The first rule provides that where the application for letters of administration is by a person other than the next of kin or person first entitled, or by one of several equally entitled, the applicant shall produce to the surrogate the renunciation and request of the persons entitled to letters, that letters be issued according to the application, or proof that at least ten days’ notice has been given to the next of kin or parties 187 by law entitled to the administration, if any, of the application, and that the renunciation and request, if any, shall be recorded in a book to be kept for the purpose. The appellant’s counsel insists that the ninth section of the “ act concerning executors, and the administration of intestate’s estates” (Rev. S97), provides for the issuing, without notice, of letters of administration upon the estate of any intestate dying within this state to any fit applicant where the decedent leaves no relations entitled to administration, or where he leaves any, and they do not apply for letters within fifty days after his death. It is true the act is silent on the subject of notice, but the rule applies, and makes notification to, or renunciation and request by those first entitled to letters, a prerequisite to the grant of letters to any other person. The order appealed from will be affirmed, with costs, to be paid by the appellant. It has been held that a court’s construction of its own rules may be reviewed on appeal, Magill’s Appeal, 59 Pa. St. 430; Bathbone v. Bathbone, 5 Pick. 89 ,- Baker v. Blood, 128 Mass. 545; Wall v. Wall, 2 Harr. & Grill 79; Abercrombie v. Biddle, 8 Md. Gh. 820; Maultsby v. Carty, 11 Humph. 361; but see Hughes Y. Jackson, 12 Md. 450; Adams Express Co. v. Trego, 35 Md. 47; Cannon v. Fritz, 79 Pa. St. 803. — Rep.