Cain v. Warford

Le Grand, C. J., delivered the opinion of this court. This case comes before us on appeal from orders passed by the orphans court for Baltimore city. ⁴⁶¹ It appears from the record, that, on the 1st, day of March 1853, tho appellee filed in the orphans court his application, asking to be granted letters of aduainistration^enefenie lite on the personal estate of Rachel Colvin, deceased, stating that she had left a will, bearing date the 6th day of April 1848, and that it had been left for probate, but that a caveat had been filed. On the 15th of March following, the appellants filed their objection to the appointment of the appellee, because, as alleged by them, “the high court of chancery of this State has assumed the management and control of the real and personal estate of said Rachel, and has appointed Benjamin H. Ellicott receiver thereof, subject to any older in the premises which it might seem necessary or proper thereafter to pass. ” On the 26th day of March Elisha W arford filed his application to have himself and Benjamin H. Ellicott appointed administrators pendente, lite, stating that the said Elisha was of the nearest of kin of the deceased, and that he represents the interest, with his own, of the majority of the nearest of kin of the deceased. This application was supported by the recommendation of the appellants, who allege themselves to be a majority in interest of those entitled to distribution.

They also filed a petition, asking that the court would order and direct plenary proceedings in the matter of the petition of appellee. The court granted the prayer of the petition of the appellee, and dismissed the petition of the appellants praying an order directing plenary proceedings. It is from this action of the court that the appeal has been taken. We see no error in the ruling of the orphans court.

The person to whom the letters were granted was, admittedly, eligible to the office to which he was appointed, and we see no thing in tho acts of Assembly which made it the duty of the court, under the circumstances of this case, to have directed a plenary proceeding. It does not appear from the record how the court of chancery obtained control of the estate of the deceased, but it was conceded by counsel in argument, that it was acquired by means of a. proceeding against her during her life, on the ground of menial incapacity to superintend and manage her