Stocksdale v. Conaway

LeGrand, C. J., delivered the opinion of this court. This is an appeal from an order of the orphans court, for Carroll county, refusing to revoke letters of administration, which had been granted to the appellee, upon the estate of Henry Cover, and dismissing the petition of the appellants, asking the revocation and the grant of letters to them. The record discloses these facts:—Henry Cover died in 1857, leaving a will, in and by which his son-in-law was appointed his executor. The heirs, devisees and legatees of the testator, were, a son, Josiah S. Cover, and two daughters, Susannah Conaway, wife of Reuben, and Elizabeth Stocks-dale, wife of Nathan, and a grand-daughter, the child of a deceased daughter. The person designated as executor qualified as such, and entered upon the duties of the office, but died in December 1858, without having settled up the estate. Josiah S. Cover, who was entitled (being the eldest male child of the deceased) to letters de bonis non, filed in the orphans court a renunciation of his right to letters of administration, “desiring, at the same time, that letters might be granted to John H. Conaway,” a son of the deceased executor, which was accordingly done. On the 28th of February 1859, sixty-eight days after the granting of the letters to the appellee, the appellants filed their petition, asking for the revocation of these letters, and the granting of others to the appellant, Elizabeth. At a subsequent period Josiah S. Cover filed his petition, asking to be made a party to the proceeding, and protesting against the revoca [106] tion, but insisting that if the letters be revoked, that his renunciation be considered as withdrawn, and his right to letters as asserted. This petition, like that of the appellants, was dismissed. The appellant, Elizabeth, is the eldest child of Henry Cover, and, as such, if there be no unmarried sister, is entitled to letters in preference to ail others, save Josiah S. Cover, unless that right has been lost by her acts or laches. The first inquiry, then, is:—What is the effect of the renunciation of Josiah S. Cover? The law gave to him the right to administration, but did not make it incumbent upon him to exercise it. There is no reason why his election should not be as binding on him, in a case like the present, as it would be in any other; and there can be no doubt that a party may conclude himself by his admissions and acts; “an election being once made, so as to charge the defendant, cannot, at a subsequent period, be prospectively retracted or abandoned.” Evans et al., vs. Iglehart, 6 Gill and Johnson, 171. in the case of Thornton vs. Winston, 4 Leigh, 152, it was held, that where an executrix declined to qualify as such, and agreed that administration with the will annexed, should be granted to her daughter, reserving her right to qualify after her daughter’s death, such renunciation was absolute and perpetual, and could not be revoked. That case also decided, what was decided in Maryland in the cases of Hoffman vs. Gold, 8 Gill & Johns., 79; Young, admx. of Young, Ex-parte, 8 Gill, 285; that the right to administer cannot be delegated. Whilst the 7th section of the 3rd sub-chapter of the Act of 1798, chapter 101, authorizes the withdrawal of the renunciation of an executor named in a will, it yet confines it to a time “before letters testamentary or of administration shall actually be committed to another or others.” The first section of sub-chapter 14 provides, that if any person entitled to administration shall deliver, or transmit to the orphans court, a declaration, in writing, that he is willing to decline the trust, the court shall proceed as if such person were not entitled;” and the 6th section of the 5th sub-chapter provides, that “in case any executor, executrix, administrator or administratrix shall die before the estate shall be fully admin [107] istered, letters of administration de bonis non shall be granted to the person entitled agreeably to the rules’ ’ laid down in the Act. (Decided July 1st, 1859.) Now the person entitled to letters de bonis non was Josiah S. Cover, and he not only expressed a willingness to decline the trust, but in the most unequivocal manner renounced, and this imposed upon the orphans court, under the 6th section of the 5th sub-chapter, the duty to appoint the party entitled. This party is the appellant, Elizabeth, if there be no unmarried sister. Nothing could deprive her of her right, except her relinquishment of it, or her failure to apply for the appointment in due time. She did not, in fact, refuse to act, and, therefore, the only question is, whether she made application in proper time? In the case of Edwards, Adm'r of Bruce, vs. Bruce, 8 Md. Rep., 387, it was decided, that an application to the orphans court to revoke letters of administration can only be made within the same time after the party applying has knoioledge that letters had been granted, as that provided by law, within which an original application for letters is to be made, and that the courts, upon the principle of analogy, will, by construction, apply express statutory restrictions, in regard to time, to cases of similar character, where no such express legislative provisions exist. In that case, the time which elapsed between the granting and the application for the revocation of the letters, was two hundred and thirty days, and the court held it was too great, that it could not, on principles of analogy, be extended beyond eighty days. In the present case, the application was made within sixty-eight days. The order must be reversed and the cause remanded, so that the parties in interest may be summoned and the question decided according to the direction of the testamentary system. Although we have expressed our opinion on the effect of the renunciation of Josiah 8. Cover, we have only done so to facilitate the action of the orphans court, when this case shall again come before it for adjudication. There was no appeal by him from the order dismissing his petition. Order reversed and cause remanded; costs to be paid out of the estate„