Lewis v. Logan

Pattison, J., delivered the opinion of the Court. Joseph B. Burns, late of Cecil county, Maryland, died on November 15th, 1912. On November 19th Alice T. Logan and Mary A. Logan, sisters of Joseph B. Burns, filed their petition in the Orphans’ Court, alleging that the said Joseph B. Burns died at the time aforesaid, unmarried and without issue surviving him, leaving them as his next of kin, and that Joseph W. Lewis, the appellant in this case, son of Amy Lewis, a deceased sister of the petitioners and Joseph B. Burns, deceased, was about to offer for probate in said Court a paper writing dated the 6th day of November, of the same year, purporting to be the last will and testament of Joseph B. Burns, in which the appellant was named as executor and sole beneficiary; and in their petition they allege that such paper writing was not the last will and testament of Burns, but that he died intestate. They further charge in said petition, (1) that the alleged will was not executed by him when hé was of sound and disposing mind and capable of making a valid deed or contract, and (2) that it was procured by undue influence exercised and practiced upon him; and asked that the will should not be attested to probate and ³³¹ that letters testamentary should not he issued to the said Lewis.

On the day that this petition was filed the said will, naming Lewis executor and sole beneficiary, was offered for probate in said Court, and on the following day the petitioners aforesaid renounced their right to letters of administration pendente lite upon his estate, and with such renunciation filed a petition in which they allege the necessity for the appointment of an administrator pendente lite, and asked that George C. and E. Harry Logan, residents of the county, be appointed such administrators. To this petition the appellant answered, contending that such an administrator was not necessary, but in his answer stated that should the Court differ with him and decide that such letters of administration should be granted upon the estate, then he alleged they should be granted to him under section 68 of Article 93 of the Code of 1912, which provides that, “In all cases where the validity of a will is or shall be contested, letters of administration pending such contest may, in the discretion of the Orphans’ Court, be granted to the person named as executor, or to the person to whom the largest portion of the personal estate may be bequeathed in such contested will, or to the person who would he entitled to letters of administration by law, as in cases of intestacy.” In his answer, he alleges that he is the person entitled to letters of administration in each of the first two of the three classes above mentioned, and that inasmuch as Alice Y. Logan and -Mary A. Logan, sisters of the deceased, had renounced their right to administer, the third class was exhausted, “because the said Joseph E. Burns did not leave a widow, nor child, nor grandchild, nor father, nor brother surviving him^ and there remains no one mentioned in the third class who would be entitled to letters of administration by law, as in cases of intestacy,” and therefore the selection had to be made from one of the two preceding classes, which would entitle him to the appointment. ³³² Upon the petition and answer aforesaid, the Oonrt, on Novemher 23rd, 1912, appointed George O. and R. Harry Logan, administrators pendente lite. It is from this order that the appeal is taken. The question here presented is a narrow one and is not, we think, difficult to determine.

It is conceded that the appointment of the sisters, or one of them, would have been permissible under section 68 of Article 93, and it is because of their renunciation that the contention is made by the appellant that no selection or appointment of an administrator pendente lite can be made from the third class named in the statute, and that as a result, the selection must be made from one of the two preceding classes. The question involved, therefore, depends solely upon the effect to be given to the renunciation of the sisters. The language of the statute is “to the person who would be entitled to letters of administration by law, as in cases of intestacy.” We understand the contention of the appellant to be that