Mitchell v. McCormick

³²⁹ OffuTT, J., delivered the opinion, of the Court. J. Lawrence McCormick was on September 20th, 1918, by the Orphans’ Court of Harford County appointed administrator of the estate of Douglas B. Gilbert, and in due course qualified and entered upon the duties of that office and administered and accounted for the then existing assets of the estate. On August. 22nd, 1922, letters on the same estate were granted to Moble L. Mitchell, who also' qualified, and undertook to administer the estate. On October 2nd, 1922, McCormick, the first administrator, filed in the Orphans’ Court of Harford County a petition for the revocation of the letters to Mitchell on the ground that until the letters first granted had been revoked no other administrator could be appointed.

The respondent answered and after a hearing that petition was, on October 4th, 1922, dismissed. The case wasi, however, at the request of the petitioner, reheard, and upon that hearing the court on October 24th, 1922, reversed its former action and revoked the letters to the appellant and' from that order this appeal was taken. The facts of the case are these: A. Preston Gilbert of Harford County died a number of years ago leaving to survive him a wife and four children, Douglas B. Gilbert, Harriet M. Gilbert, Preston Gilbert and Mrs. Martha G. McCormick. By his last will, which was probated in Harford County, he left his estate to his wife for life with the remainder over to their children equally.

Prior to September 20th, 1918, Douglas B. Gilbert died, and letters of administration were, as stated above, granted to McCormick on his estate on that date. On June 16th, 1922, Mrs. Gilbert, the life tenant, died, and upon her death Moble L. Mitchell, who acted as trustee of the estate of A. Preston Gilbert, informed Mr. McCormick, that it would be necessary to administer upon the estate of Douglas B. Gilbert and gave him a blank form of renunciation to be executed by Mrs. McCormick, his. wife, who was also the sister of the decedent. McCormick took the paper ³³⁰ to his wife who signed it and returned it by him to Mr. Mitchell. At the time Mr. and Mrs. McOormick had both overlooked the fact that McCormick had been appointed over three years before administrator of the estate of Douglas Gilbert and, never having resigned, still held the office, and Mitchell does not appear to have known of it at all when letters were granted to1 him.

Hor when the letters were granted to the appellant was the fact that letters had already been granted to McOormick, which had never been revoked, brought to the court’s attention, and it was only when the notice to creditors given by the appellant appeared that Mc-Oormick recalled that he had been appointed administrator of the estate of Douglas B. Gilbert. So that when the letters were granted to Mitchell, neither he, the court, or McOormick recalled the earlier grant of letters. The first question presented by the appeal is whether the Orphans’ Court of Harford County had the power to' grant letters of administration to the appellant before the death, resignation or removal of the administrator theretofore appointed. Clearly the court had no such power.

In 1 Woemer on the American Law of Administration see. 179, it is said: “Since there can be but one valid administration in the same state of the same succession at the same time, the appointment of an administrator de bonis non before the death, removal or resignation of the executor or original administrator is obviously a nullity; and this applies with the same force to the case of several joint executors or administrators so long as one of them remains in office, because the grant of administration is an entirety, and the authority survives to the last one.” And in 24 C. J. 1142, the same principle is thus stated: “The appointment of an administrator de bonis non is proper where the original executor or administrator has died, become insane, disappeared, become bankrupt and absconded, resigned, or been removed, or where the original letters have ben revoked; and where the marriage of an executrix or an administratrix extinguishes her