Henning v. Varner

Stewart, J., delivered the opinion of the Court. This appeal, from the Orphans’ Court of Baltimore city, involves the right to letters of administration de bonis non cum testamento annexo, upon the estate of Thomas Henning. The appellant'insists that he is entitled, as one of the residuary legatees, whilst the appellee claims as the nearest of kin. Under the 34th section of the 93d Article of the Code, where letters of administration are to be granted, with a copy of the will annexed, and there are residuary legatees and no widow, the male residuary legatee is preferred to the female.

This section has no reference to the degrees of kindred — the male; although an utter stranger, by blood, is preferred to the female, however near to the deceased by affinity or consanguinity. In such base, the daughter of the testator, although a residuary legatee, must be postponed to her nephew, the grand-son of the testator, a male residuary legatee. But this preference, according to the terms of the section, is only given where there are residuary legatees; and the appellant, to entitle him to be preferred, must show, from the true construction of the will, that he is not m'erely legatee, but a residuary legatee. The bequest, by the first clause of this will, is made of all. the property of the testator, to the wife, during her widowhood, with the remainder thereof, limited over, at her death, to the other parties described in -the will, of which the appellant is one.

Under the terms of this first clause, the testator disposes of all his estate, leaving no residue. The subsequent provisions, as to the money due at the death