Mobley v. Mobley

Parke, J., delivered the opinion of the Court. Clarence D. Mobley died a resident of Frederick County on April 12th, 1925, intestate, and possessed of personal estate whose value is estimated to be about seven thousand dollars. He was unmarried, and his next of kin were his brother, William J. Mobley, a resident of Frederick County, and a half sister, Alice D’. Mobley, who was an adjudged lunatic, and a nephew and a niece, Howard V. Mobley and Hina R. Hall, who were non-residents of the State of Maryland, being in Washington, D. C., and a nephew, E. Keefer Mobley, of Baltimore, and an infant great niece and two infant great nephews, whose three names do not appear in the i-eeord.

The nephew and niece, Howard Y. Mobley and Hina R. Hall, first applied for letters of administration upon his estate, and the brother followed with a similar application, which was accompanied by a purporting power of attorney from the applicant. This power of attorney was undated and anticipated his appointment, since it was executed as administrator by the brother to his own daughter, Exie E. Tingling, whom he attempted to constitute his agent “with full powers to collect all debts due the said estate; pay all debts due by the said deceased, make all returns to the ⁴⁰⁴ Orphans’ Court for Frederick County, settle accounts with said court; in short, to do and transact all such business as-may be necessary to a full and complete administration of said deceased estate.” The application of the nephew and niece was objected to by the brother on the grounds that they were non-residents- of the State of Maryland and a degree further removed from the intestate than the brother in kinship. The nephew and niece, in turn, protested the' appointment of the brother. They alleged that he was incapable of acting; and, in effect, had so admitted by the execution of the power of attorney, which was asserted to be equivalent either to a renunciation or a waiver of his right to administer.

These petitions and objections came on for hearing, and testimony was taken before the Orphans? Court of Frederick County, and reduced to writing. The court held, upon the proof, that the petitioner, William J. Mobley,, was competent and qualified; and by its order of June 1st,. 1925, appointed him the administrator. From this order, Howard V. Mobley and Hina B. Hall, brother and sister,, have appealed.

The intestate’s next of kin in degree of relationship! were-the surviving brother and half-sister. As the half-sister had! been declared a lunatic under an inquisition held before the death of the intestate and was thereafter kept in confinement by reason of her continuing insanity, she was unqualified. Richardson v. Smith, 80 Md. 94, 97 ; Kearney v. Turner, 28 Md. 408, 425, 426 ; Code (1924), art. 93, secs. 17, 53, 57. But if she were not mentally incapacitated, the male is preferred to a female, and the whole blood to the half blood of the class formed by the kin standing in an equal degree of relationship to the intestate; and, therefore, the appointment of the brother would not be the subject of an appeal, if the brother be possessed of the requisite qualifications.

Code (1924), art. 93, secs. 21, 23, 24; Cook v. Carr, 19 Md. 4 ; Georgetown College v. Browne, 34 Md. 457 ; Bowie v. Bowie, 73 Md. 234 ; Kailer v. Kailer, 92 Md. 149 ; Dorsey v. Dorsey, ⁴⁰⁵ 140 Md. 170 ; Covey v. Charles, 49 Md. 314 ; Richardson v. Smith, 80 Md. 94, 97 . The appellants as niece and nephew are two members of a class of four, who axe one degree further removed from kinship with the intestate than is his brother, the appellee. The appellants were, therefore, not entitled to the grant of letters of administration under the circumstances of this record, unless the brother was incompetent under the law or1 had declined, expressly or impliedly, to administer. Code (1924), art. 93, sec. 22; Williams v. Addison, 93 Md. 45 ; McColgan v. Kenney, 68 Md. 259 .

The appellee did not formally renounce his right to administer, but his attempted nomination of an agent to perform the duties of his administratorship is affirmed by the appellants to have been either an implied renunciation or a waiver of his right to administer. There is no sufficient foundation for this contention. Apart from all other considerations-, the appointment in writing of the daughter as appellee’s agent, although undated, was executed and filed simultaneously with his sworn petition and application for the grant of letters of administration to him, and after the appellees had filed their petition and application with the Orphans’ Oourt of Frederick County. ' Instead of disclaiming any intention to administer, the petitioner was at once enforcing his superior right through the appropriate procedure, and resisting the appointment of the nephew and niece. lie can not be said to have intended either to renounce or to waive what he was then avowedly and determinedly seeking. His action and the proceedings were not susceptible of the construction that he was renouncing any right-.

The agency, which is sought to be made equivalent to a renunciation or a waiver, was itself in terms explicitly dependent upon the grant of letters of administration to the appellee and pre-supposed the prior appointment of the appellee a-s- administrator. The proposed delegation was an assertion of the principal’s power arising through a grant- to him of the right to administer, and from ⁴⁰⁶ its inherent nature such an act cannot be construed to be a renunciation or a waiver of the right to a status, which the donor was anticipating, but nevertheless in the course of asserting, when he executed the document in question. Brodie v. Mitchell, 85 Md. 516, 519 . In the prematurely executed power of attorney, the appellee was exercising the authority with which he believed he would have been clothed as the administrator of the intestate, and this was quite a different thing from an express renunciation of the right to be” appointed administrator or from one implied from conduct, amounting to a waiver or estoppel, of the party entitled, as is illustrated by those cases relied upon hy the appellants.

Slay v. Beck, 107 Md. 357 ; Slay v. Beck, 108 Md. 72 ; Brodie v. Mitchell, 85 Md. 516 ; Stocksdale v. Conaway, 14 Md. 99, 106, 107 ; Evans v. Iglehart, 6 G. & J. 171 ; Thornton v. Winston, 4 Leigh (Va.), 152 ; Hoffman v. Gold, 8 G. & J. 89 ; Ex parte Young, Admr., 8 Gill. 285; Carpenter v. Jones, 44 Md. 625 ; Thomas v. Knighton, 23 Md. 326 ; Georgetown College v. Browne, 34 Md. 450 . It has long been recognized in this state that an executor or administrator may, within certain limitations, delegate his authority as a personal representative to an agent. He may, for instance, employ counsel to- act in legal affairs and in collections (a) ; an overseer to finish the growing crops of the decedent (b) ; or an agent to rent the property of the estate (c), or to collect its claims, or to assist in other ministerial duties (d). In fact, the case of Eversfield's Executrix v. Eversfield’s Representatives, 4 H. & J. 12 (1815), is an illustration of settlements of accounts having been made for an executrix in the Orphans’ Court of Prince George’s County by her agent as a matter of course.

And the preamble to chapter 131 of the Acts of 1823, conferring authority upon the orphans’ court, “wherever they are satisfied that an agent has been employed in the administration of the estate of a deceased person by an executor or administrator oi executrix or administratrix, to examine such agent on ⁴⁰⁷ oath of all proceedings which may have taken place relative to the administration of the estate of any deceased person in which such an agent may have been, employed, in like manner, as they are now authorized hy the act to which this is a supplement to examine executors or administrators,” recited that the occasion for the enactment was the great frauds which had been practiced by the employment of such agents, “who are not compelled hy law to make any return of their proceedings to the several orphans’ courts in this state and cannot be examined by said courts, on oath, as to- their proceedings.” This statute is now' codified as section 7 of article 93 of the Code (1924). (a) Ward v. Koenig, 106 Md. 433, 436 ; Sonneborn, v. Hutzler, 134 Md. 424, 435 ; Exparte Young, 8 Grill, 285, 287; Estate of Young, 3 Md. Ch. 461, 475 . See Gwynn v. Dorsey, 4 G. & J. 453 . (b) Lee v. Lee, 6 G. & J. 316; Sullivan v. Tuck, 1 Md. Ch. 59.

(c) Handy v. Collins, 60 Md. 229, 235 . (d) Eversfield’s Executrix v. Eversfield’s Representatives, 4 H. & J. 12 . Mechem on Agency (2nd ed.), secs. 312, 315, 316. The power of attorney in the instant case was inoperative because it was executed, delivered, and filed on April 25th, 1925, and letters of administration were not granted to the appellee until five weeks, later.

Ratrie v. Wheeler’s Executor, 6 H. & J. 94 . But even if it had been executed after the appellee’s selection and qualification as administrator, the instances last cited of the valid delegation of power by an executor or administrator illustrate the point that the nomination of an agent to act for 'an administrator in his representative