Kearney v. Turner

Bartol, C. J., delivered the opinion of this Court. In disposing of this appeal, it is unnecessary to express any opinion upon the effect of the renunciation of William E. Turner, or the power of the Orphans’ Court to allow its withdrawal. Conceding that the appellee is correct in the view that under the circumstances, there was no error in permitting the renunciation to be withdrawn; then the question is presented as between the appellant and appellee, which of them is entitled to the administration. The solution of this question depends upon the true construction of the provisions of our testamentary law regulating the right of administration.

Both the contestants are first cousins of the intestate, Dr. David Craufurd; the appellant being related on the side of his father, and the appellee on the side of his mother. By the Code, Árt. 93, sec. 22, it is provided “ that if there be neither widow, nor child, nor grand-child, nor father, nor brother, nor sister, nor mother, the next of kin shall be preferred.” By the subsequent sections rules are prescribed, fixing the order of preference among next of kin. The appellee claims to be entitled under the 23d sec. which declares “ that males shall be preferred to females in equal degree of kin.” While the appellant claims under the 29th sec., which provides that “relations on the side of the father shall be preferred to relations on the side of the mother in equal degree.” These rules are supposed to be in conflict. It is very apparent, if the appellant and appellee stand in equal degree of kin to the intestate, in the sense in which those terms are used in the 22d section, there would be some difficulty in ⁴²⁴ reconciling those two provisions of the Code.

Being inconsistent, one or the other of them would have to he disregarded in this case, unless we should adopt the. view of the appellant, and say that by the 29th section, relations on the part of the father are designated as a preferred class, (while section 23 must be construed as referring to indiyiduals, and not to a class; thus all persons related on the side of the father, whether male or female, are preferred to relations in equal degree on the side of the mother, while as among persons belonging to the same general class, that is, among those related on the side of thé father, or on the side of the mother, males are preferred to females. This is a reasonable construction, consistent with the language of the law, making its several provisions consistent with each other, and giving them all their proper operation and effect. We do not rest our opinion, however, upon this construction alone. In our judgment the term “ next of hin ” as used in the 22d section, is to be understood in its legal sense as meaning hindred, the word used by the law of descents.

Code, Art. 47, sec. 1; and importing heirs-at-law, relations by consanguinity, or of the blood of the decedent. The provisions of the Code regulating the right of administration follow very closely the law of inheritance, which is departed from in several particulars in the statute of