Dalrymple v. Gamble

Stone, J., delivered the opinion of the Court. Edwin A. Dalrymple, died in Baltimore in October, 1881, intestate, and unmarried. His brother, William H. Dalrymple, died in California some weeks after the death of Edwin. Upon the death of Edwin A. Dalrymple, his brother, Augustine J. Dalrymple, took out in Baltimore letters of administration upon his personal estate in that city.

It appears that William H. Dalrymple left a will. That the will was contested, and after a long litigation the factum of the will was finally established by the Courts of California, and upon its establishment the devisee under such will filed a copy of it duly certified, &c. in the Orphans’ Court of Baltimore City, where administration on the estate of Wm. H. had been granted, and prayed that Court to revoke the letters of administra ³⁰⁴ tion that had been previously granted, and to grant letters of administration c. t. a., there being no executor named in said will. The next of kin and heirs of Edwin resisted the petition of the devisee under the will to revoke the letters of administration for several reasons, and among them they allege that the will was only conditional and the condition did not in fact occur, &c., and that they have instituted proceedings in a Court of equity to determine the effect and operation of said will, and that until that matter is decided the letters should not be revoked.

They insist that if it should turn out that the devise is void for any reason, or does not operate on the Baltimore property, the letters of administration c. t. a. would have to be revoked, and Augustine would have to be re-appointed, and that the matter should be delayed until that matter was settled, and it was shown whether, the will was operative or not, and whether the devisee in fact took any thing under it. That if the devisee in fact took nothing under the will she had no right or standing to come into Court and ask for the revocation of the letters, and that being a preliminary question should first be settled, and this view the appellants have pressed with much force. The appellees on the other hand contend that as soon as a will is filed, letters of administration previously granted should be revoked, and letters of administration c. t. a. should be granted to some one to defend such will if attacked, and to administer the estate according to the will, if it is admitted. The questions for our decision may be divided into two.

The first is whether when this duly certified copy of the will probated in California, was filed, the letters before granted to Augustine were properly revoked. And secondly, if revoked, what was the proper course for the Orphans’ Court to pursue in the new appointment. ³⁰⁵ The answer to the first question depends upon secs. 36 and 327 of Art. 93 of the Code. Sec. 36 is explicit in saying that if a will is filed and the executor therein named shall apply within 30 days after the filing, for letters testamentary, they shall be granted, and the granting of such letters shall operate as a revocation of letters of administration previously granted. Under those circumstances the Orphans’ Court would have no discretion in the matter.

But the law is silent as to what shall be done when there is no executor named, although a will is filed. This section 36 makes no distinction between a foreign and a domestic will, and we can see no reason why any distinction should be made, and when we take into consideration sec. 327, we think none should be made. The will in this case is a foreign will, and professes to dispose of all the personal property, but it appoints no executor, and it is not a case therefore where the Orphans’ Court are compelled to revoke. But the whole policy of ■our testamentary system is to commit administration to the hands of those most interested in the property.

Had a will, like the one in this case, been filed before any administration had been granted, the Orphans’ Court would surely have granted letters c. t. a. and not the. ordinary letters of administration. But the power of the Orphans’ Court to revoke letters improvidently granted is unquestioned. We can see no reason why that Court should not have the discretion to revoke letters previously granted, and grant new letters c. t. a. upon the discovery of a will. The Orphans’ Court by our Act is given power “to administer justice in all matters relative to the affairs of deceased persons,” (sec. 230 of Art. 93.) Under this section that Court would have the power, if they thought justice to the affairs of the deceased required it, to revoke and re-appoint.

The power to administer justice would be seriously impaired if that Court possessed no power or discretion to ³⁰⁶ revoke letters that it had previously granted upon a mistaken state of facts. Raborg’s Adm’x vs. Hammond, 2 H. & G., 42 . It must be borne in mind that the authority conferred by letters testamentary is different from that .conferred by letters of administration. The one directs distribution according to the will, and the other according to our Statute of Distributions.

But an argument has 'been addressed to the Court hy the appellants against this revocation upon the ground that this is an ancillary administration only. But we fail to see the force of this objection. It appears from the record that there was an administrator appointed in California, the domicil of the testator, and the administration here in Maryland is ancillary to that in California. But the duties of an ancillary administrator, o. t. a., and an ordinary administrator, c. t. a., are precisely the same with one exception, and that exception is this, that in the case of an ancillary administrator, c. t. a., it is a matter of discretion with the Orphans’ Court to direct distribution to be made hy the ancillary administrator or to order and direct him to transmit the assets to the home administrator to he distributed by him there.

Their duties as to the payment of the debts of the testator are the same. The California creditors have the same right to prove their debts against an ancillary administrator c. t. a., here, that they have against the principal administrator there. We are speaking of a case where there is a will. The law of the domicil governs the distribution in case of intestacy.

Corrie’s Case, 2 Bland, 488 ; Cassilly vs. Meyer, 4 Md., 1 ; Williams vs. Williams, 5 Md., 467 . There are some general principles underlying our testamentary system that should be kept in view. One of these principles is, that the system has aimed to commit-administration to the hands of those most interested in the estate. The Courts have gone so far in this line as to ³⁰⁷ decide, that a widow who by an ante-nuptial agreement had no interest in her husband’s estate, had no right to administer although the statute gives her the right by express words.

When therefore it appears on the face of the will before the Court, that the next of Mn have no interest in the property, the care and custody of it should, as far as the law permits, be in the hands of those most interested in it. It may turn out eventually that the appellants are correct in their contention, and that the will may be shown to be inoperative, or not affecting the Maryland property. But the factum of the will is conceded, and we must deal with it now as Avith any other well executed will. Eor can we perceive any legal obligation upon the Orphans’ Court to await the result of an equity suit instituted by the appellants themselves, before they proceeded to revoke.

If the Orphans’ Court possessed exclusive jurisdiction to act in the premises, that could not be taken away by the institution of a suit in another Court. If they possessed the poAver and authority to act at all, the ' time when they should act, must be in their discretion. We do not think that in every case where a will is filed after letters of administration are granted (except in the special case provided for in sec. 36 of Art 93,) that the Orphans’ Court is obliged to revoke such letters. We can well suppose a case where it would be useless, as for example, where the legatees, and the distributees would be the same.

But upon the Avhole case we think it a matter within the discretion of the Orphans’ Court, and with that discretion we see in this case no sufficient reason to interfere. But the question next arises what was the proper course for the Court to pursue after the revocation of his letters. ³⁰⁸ The 34th sec. of Art. 93, of the Code, regulates the appointment of administrators c. t. a., and provides that the residuary legatee shall be preferred to all except the widow. But in this case there is no residuary legatee that claims the administration, and no widow,- and under the decision of Georgetown College vs. Browne, 34 Md., 450 , the next of kin, to wit, the brother or sisters of Edwin would unquestionably be entitled to such letters, unless by their own act they have waived or forfeited their right. The law regulating the appointment will be found in sections 30, 31, and 33 of Art. 93 of the Code.

These sections make it necessary that brothers or sisters should be summoned or notified, and if they decline or refuse to appear, and the creditors or more remote collaterals do not themselves apply, administration may be granted in the discretion of the Court.' Now the brothers and sisters were summoned into the Orphans’ Court, and clearly notified by the petition filed by Mrs. Hatch, (now -Gamble,) that a revocation of the letters granted to A. J. Dalrymple, and the appointment of an administrator c. t. a. was asked for. This petition was filed as far back as 1883, and this petition was answered by the administrator. Other papers were filed in the Orphans’ Court directing the attention of the brothers and sisters, (who were all summoned and in Court by counsel) to the object of the petitioners, to wit: to have the letters of administration revoked and an administrator c. t. a. appointed. They contested the revocation of the letters, but no where claim or assert their right to letters c. t. a.

In that particular they stood as if they had not appeared. The