McCaughy v. Byrne, Admr.

Schmucker, J., delivered the opinion of the Court. This is an appeal from a decision of. the Orphans’ Court of Howard County that -a creditor of a testator was entitled to precedence over a residuary legatee in the grant of letters of administration cum testamento annexo upon the estate. It appears from the record that Emily Madeline Wyman, a widow, residing in Howard County, died in-June, 1910, leaving a last will, which was duly admitted to probate by the Orphans’ Court of Howard County on August 2nd, 1910. Her will, after malting sundry specific devises and bequests and pecuniary legacies, disposed of the residue of her estate in the following terms: “And I do devise and bequeath all the rest and residue of my estate, both real, personal and mixed, to my sister, Mary Theresa Dallas, at her death to go to Annie McCaughey in reward for her devotion to my sister.” By an earlier clause of the will she gave Ho. 23 Tremont street, Boston, Mass., and the sum of three thousand dollars to Erancis J. Horgan in trust for her sister, ⁸⁷ Mary Theresa Dallas, for life, with remainder to Annie McCanghey for her devotion to the sister..

The will named the National Saving’s Trust Company, of Washington, as executor, hut that institution declined to act as such, whereupon on Sept. 6th, 1910, the Orphans’ Court passed an order appointing Mary T. Dallas, the sister of the testatrix, administratrix cum testamento annexo of her estate. On October 11th, 1910, Erancis J. Horgan, trustee of Mary T. Dallas, and the appellant as a remainderman under the will of Mrs. Wyman, filed a joint petition in the Orphans’ Court alleging the death of Mrs. Wyman, testate, the admission of her will to probate, the renunciation of the executor therein named and the order of Court appointing Mary T. Dallas administratrix cum testamento annexo, and averring that Mary T. Dallas was non compos mentis and hence incompetent to act as such. The petition prayed for the rescission of the order appointing Mary T. Dallas administratrix c. t. a., and the appointment as such administratrix of the petitioner, Annie E. McOaughey, who claimed the right to the appointment by virtue of her being a residuary legatee under the wi1. It was further averred in the petition that Horatio Nelson Dallas, the brother of the testatrix, was a non-resident of this State, and that his place of residence was otherwise unknown except that when last heard fiom he was a residen*, of the State of Massachusetts, but that he had not been heard from for a long time.

On the same day, Oct. 11th, 1910, Bernard J. Byrne, of Howard County, claiming to be a creditor of the testatrix to the extent of sixty dollars, filed his petition in the Orphans’ Court, averring that she had left surviving her no relatives legally competent and praying that letters of administration c. t. a. on her estate be issued to him as the person who, under the circumstances, was first entitled thereto. On the same day the Orphans’ Court passed the order, appealed from, rescinding its former order of Sept. 6th, 1910, by which Mary T. Dallas had been appointed administratrix ⁸⁸ c. t. a. and directing letters of like character to be issued to Bernard Byrne. The Orphans’ Court were clearly in error in treating Byrne,- a creditor of the testatrix, as entitled to the letters of administration in