Ehlen v. Ehlen

Alvey, C. J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore City, dated the 22d of April, 1885, dismissing the petition of the appellant, praying for the revocation of the letters of administration that had been previously granted to the appellee, upon the estate of John H. Ehlen, deceased. John H. Ehlen died intestate in November, 1883, leaving the appellant his widow, and an only child, Blanche Ehlen, an infant then but a few days old. Soon after the death of her husband, the appellant, with her infant child, removed from the State, and became a resident of the City of Philadelphia, where she still resides, and with no intention of returning to this State to resume her former residence.

The only estate, so far as disclosed by the record, belonging to the decedent at the time of his.death which could be the subject of administration, was an interest in funds under his grandfather’s will, then in the hands of the appellee as trustee, and which has been the subject of litigation, and which litigation was ultimately decided by this Court in the case of Ehlen vs. Ehlen, 63 Md., 267 . The decision was rendered on the 11th of March, 1885, and by that decision it was declared that the interest of the decedent, upon his death, devolved on his personal representative; but down to the time of the decision of this Court, there had been no administration upon his estate, though more than sixteen months had elapsed since his death. Within a very short time after the decision of this Court, the appellee, the father of the decedent, made application for letters of administration upon his son’s estate, and on the 24th of March, 1885, letters were granted to him. On the next day thereafter ³⁶² the petition of the appellant was filed, praying the revocation of those letters, upon two distinct grounds: 1st, That the appellant was entitled to the administration upon the estate of her deceased husband; and, 2nd, That the appellee, by reason of the fact of 'his relation to the trust estate, and his improvident management thereof, was not a fit and proper person to hold the letters of administration.

The case was heard in the Orphans’ Court upon evidence, and that Court, finding as matter of fact that the appellant resided beyond the jurisdiction of this State, and that she had been requested by the appellee to take out letters upon her husband’s estate, but that she had declined so to do, held that she was “ excluded from the administration;” and thereupon dismissed her petition. It is from that order that the present appeal is taken. 1. That non-residence of the person otherwise entitled does not of itself constitute disqualification for the office of administrator, would seem to be conclusively settled by the case of Smith and Wife vs. Young, 5 Gill, 197 . But the question here is, whether the fact of non-residence does not in a special manner affect the right of a party to administer, whose application for letters has been preceded by the actual grant of letters to some other competent person to receive them, in the absence of the person last applying ?

The Code provides, Art. 93, sec. 18, that if the intestate leaves a widow and a child, administration, at the discretion of the Court, shall be granted either to the widow or the child; and, by sec. 19, if there be a widow and no child, the widow shall be preferred, and next to the widow or children a grand-child shall be preferred ; but by sec. 20, if there be neither widow "nor child or grandchild, the father of the intestate shall be preferred. It is then provided by sec. 33, that it shall not be necessary to give