McColgan v. Kenny

Bryan, J., delivered the opinion of the Court. Catharine Ford died intestate leaving her husband, James Ford, surviving her, but leaving no children or descendants. On the twenty-sixth day of February, 1886, the husband renounced his right to administer, and the Orphans’ Court, on his recommendation, appointed James McColgan, administrator, who duly qualified and undertook the administration of the estate of the deceased. The deceased left a brother Thomas Gallagher, and a sister Bridget Kenny, the appellee in this case. Upon the renunciation of the surviving husband, the brother and sister were the next persons entitled to administration; the brother being entitled to preference. According to the Act of 1882, chapter 477, they had no interest whatever in the personal estate of the deceased; but the Act does not take from them the right to administer. By the thirty-eighth section of Article 93 of the Code, upon the renunciation of any person entitled to administer, the Orphans’ Court must proceed as if such person were not entitled. The appointment of Mr. McColgan was therefore improvident, and he must be removed on this application, unless the petitioner has in some way lost her right. The petition was filed by Mrs. Kenny on the seventh of March, 1887. She and her husband both testifying that before administration was granted, Ford in their presence and in the presence of her brother asked Mr. McColgan to administer. Mr. McColgan testifies as follows : “ Mr. Gallagher and Mr. Ford had both repeatedly stated that they wanted me to administer, it was talked over fully in Mrs. Kenny’s presence, and she entirely approved of it at that time; then they were apparently agreeing ; I did not administer at that time, that is, say February 19th, and it was then understood and agreed that I was to administer on the estate, because Mr. Ford himself had doubts about his capacity, and Gallagher had, and I believe Mrs. Kenny had also.” It also appears from Mrs. Kenny’s testimony [261] that “ shortly after the summer or in September ” she called to see McColgan and asked him to pay some debts of the deceased. McColgan testifies that she asked him if he had not sold two stalls belonging to the estate; he probably refers to the same interview mentioned by Mrs. Kenny. He also testifies that the last time she was in his office she knew he was administrator and was talking to him as administrator. It is probable she had no very exact ideas on the subject of the duties of an administrator. It is, however, satisfactorily shown that she knew McColgan was requested to act as administrator, and that at least as early,as September, 1886, she asked him to pay debts of the deceased, and to sell a portion of her personal estate ; acts which could be done by no one except an administrator. This petition to remove him from the administration was not filed until the seventh of March, 1887. If there was no misapprehension on the part of Mrs. Kenny and her brother about the request to McColgan that he should administer, their right was waived under the rule laid down in Pollard vs. Mohler, 55 Md., 287. But at all events according to Edwards vs. Bruce, 8 Md., 392, the petition was filed too late; it ought to have been dismissed. (Decided 5th January, 1888.) Order reversed with costs, and cause remanded.