Kailer v. Kailer

¹⁴⁸ Schmucker, ]., delivered the opinion of the Court: This is an appeal from an order of the Orphans’ Court of Washington County directing letters of administration upon the estate of David Kailer, deceased, to issue to his eldest son, Thomas H. Kailer, and Buchanan Schley. The decedent, who was a widower, left surviving him five sons and two daughters, and also two grandsons, sons of his deceased son. Of these descendants the eldest son and one of the daughters reside in Washington County. The other daughter resides in Frederick County, and all of the others are non-residents of this State.

The father died on the 21st of August, 1 goo, and ten days after his death his eldest son, Thomas H. Kailer, made written application to the Orphans’ Court to be appointed administrator, requesting that Buchanan Schley be appointed co-administrator with him. Before this petition had been acted upon by the Court a petition and protest was filed by the other four sons in which they protested against the application of Thomas H. Kailer for letters to him and Buchanan Schley, and asked that letters of administration issue to two of their own number. This last petition assigned as the ground upon which it was filed that Thomas H. Kailer was indebted to the father to an extent in excess of his interest in the estate and that his conduct since the death of the father was such that he had forfeited all right and claim to be the sole representative of the estate. At the hearing of the petitions, testimony was introduced showing that a tin box, found in the trunk of the deceased, contained bonds and stocks worth $13,075, and a note from the appellee, Thomas H. Kailer, for $4,000, but it did not appear what was the entire value of the personal estate.

One of the daughters testified that a day or two prior to the death of her father she and her brother, Thomas H. Kailer, counted the money in their father’s pocket-book and found it to be five hundred and twenty-five dollars, and that her brother then proposed to her that he and she divide this money between them and say nothing about it to the others. Thomas H. ¹⁴⁹ Kailer went upon the stand and denied that he ever made any such suggestion to his sister in reference to dividing the money found by them in their father’s pocket-book, but he insisted that he had told her to keep the money intact until it was called for by the proper parties, and he said that the contents of the box, including his own note, still remained