Phillips v. Clark

⁵⁸⁰ Parke, J., delivered the opinion of the court. . The record in this case shows that a certain Addie Florence Phillips died, testate in Anne Arundel County-on January 13th, 1937. The will was made on December 31st, 1925. By this instrument the testatrix devised and bequeathed all her property to her two sisters, Stella Iren Phillips and Hattie Olive Phillips, as joint tenants, and made them her executrices.

Both of these sisters died before the testatrix. On January 31st, the will was admitted to probate. The value of the real estate of the testatrix was estimated to be $3000 and her personal estate to be $1500. The surviving next of kin of the decedent are two brothers, John L. Phillips and Alfred W. Phillips, who are residents of Annapolis; and three nieces and two nephews, Harriet Peters and James Peters, of Cumberland, Maryland, Philip Windsor Peters, of Baltimore, and Audrey Leah Levine, of the State of New York, and Ethel Phillips Clark, of Annapolis, the appellee and the daughter of the appellant, Alfred W. Phillips.

All of these next of kin are adults, with the exception of James Peters, who is an infant. The brother, Alfred W. Phillips, filed a petition with the Orphans’ Court of Anne Arundel County requesting that he be granted letters of administration with the will annexed on the estate of the testatrix. All the other adult next of kin filed renunciations and asked that the appellee Ethel Phillips Clark be appointed. In this action the infant united through his father and guardian.

So far, therefore, as the circumstances permitted, every next of kin urged the appointment of Ethel Phillips Clark, except Alfred W. Phillips, who is her father. Mrs. Clark, also, filed a petition for appointment as administratrix. All these papers were filed on January 31st, when the will was admitted to probate. In the proof of the custody of the will there is, at the close of the affidavit by the custodian, the notation “All parties notified”, which probably accounts for all these papers being filed by the parties interested on January 31st, 1939, when ⁵⁸¹ the matter was acted upon by the Orphans’ Court and on that day decided, without answers or any other pleadings having been made to either of the two petitions.

So far as appears, the Orphans’ Court disposed of the question of the right to letters of administration upon the two petitions and the renunciations and recommendations filed. If any testimony were taken and reduced to writing, none is incorporated in the record. It is true that the Orphans’ Court wrote, at the head of the application of Alfred W. Phillips, the endorsement that his petition was rejected “as the Court does not consider the applicant the proper person to handle this estate.” Again, in the order of court signed by the three judges of the Orphans’ Court on January 31st, and appointing Ethel Phillips Clark the administratrix with the will annexed of the estate of the testatrix, the introductory recitals affirm that there are the two petitions for letters of administration with the will annexed before the Court; and that one is by the brother “who for good and sufficient reasons this court does not consider the proper person to handle this estate,” while the other is by Ethel Phillips Clark, “who has been trustee of the deceased’s (an incompetent) estate in the Circuit Court”. The court, in the succeeding paragraph, states that John L. Phillips, the invalid brother of the testatrix, has renounced his right to administer, and that he and the children of a dead sister have consented and agreed to the appointment of Mrs. Clark.

The court then concludes with the appointment of Mrs. Clark upon her giving bond in a prescribed amount. The bond was given and letters of administration c. t. a. were issued and notice to creditors was authorized. From the orders rejecting his application and appointing the administratrix, Alfred W. Phillips has appealed, and a motion is filed in this court for the dismissal of the appeal. From this summary of the record it is plain that the proceedings were not plenary.

No answer under oath was filed to either of the applications. It does not appear what the issues considered were, nor that there was a ⁵⁸² hearing of the parties, at which the appointment of the administrator was submitted on an agreement of the facts or on the allegations in either of the petitions. No testimony is found on the record nor is it shown that any was taken nor even that an opportunity to offer proof was afforded. On such a record no judgment or decree may be founded.

Bagby, Excrs. and Admrs. (2nd Ed.) secs. 154, 155, 174; Stonesifer v. Shriver, 100 Md. 24, 28, 29 , 59 A. 139 . On the other hand, if the orders from which the appeal is taken were made in a summary proceeding, and on the testimony of witnesses,