McColgan v. Kenny

Bryan, J., delivered the opinion of the Court. Catharine Ford died intestate leaving her husband, James Ford, surviving her, but leaving no children or descendants. On the twenty-sixth day of February, 1886, the husband renounced his right to administer, and the Orphans’ Court, on his recommendation, appointed James McColgan, administrator, who duly qualified and undertook the administration of the estate of the deceased. The deceased left a brother Thomas Gallagher, and a sister Bridget Kenny, the appellee in this case.

Upon the renunciation of the surviving husband, the brother and sister were the next persons entitled to administration; the brother being entitled to preference. According to the Act of 1882, chapter 477, they had no interest whatever in the personal estate of the deceased; but the Act does not take from them the right to administer. By the thirty-eighth section of Article 93 of the Code, upon the renunciation of any person entitled to administer, the Orphans’ Court must proceed as if such person were not entitled. The appointment of Mr. McColgan was therefore improvident, and he must be removed on this application, unless the petitioner has in some way lost her right.

The petition was filed by Mrs. Kenny on the seventh of March, 1887. She and her husband both testifying that before administration was granted, Ford in their presence and in the presence of her brother asked Mr. McColgan to administer. Mr. McColgan testifies as follows : “ Mr. Gallagher and Mr. Ford had both repeatedly stated that they wanted me to administer, it was talked over fully in Mrs. Kenny’s presence, and she entirely approved of it at that