Pollard v. Mohler

Robinson, J., delivered the opinion of the Court. On the 22nd of April, 1829, letters of administration were granted to Silas Larsh, on the estate of Margaret Larsh, deceased. On the 19th of November, 1879, more than fifty years thereafter, letters of administration de bonis non, were granted to the appellant, and on the 29th of the same month, an inventory of the unadministered assets belong ing to the estate was returned hy the administrator d. b. n. to the Orphans’ Court of Baltimore City. On the 17th of December, 1879, a petition was filed in the Orphans’ Court hy Julia Y. Mohler, the appellee, hy her husband and next friend, alleging that she is a granddaughter of Margaret Larsh, deceased, and as such, entitled to letters on said estate, and praying that the letters theretofore granted to the appellant be revoked.

In reply to this petition, the appellant alleges that the said Julia Y. Mohler, and all other heirs and personal repre ²⁸⁸ sentatives, agreed to waive and did waive their respective rights of administration on the estate in question, and directed him to administer on said estate, and in their place and stead to do all things pertaining to such office. That this agreement was assented to and confirmed by the husband of the appellee, and that in pursuance of said agreement, waiver and request, and for no other reason, he undertook and assumed the duties of said office, and did much labor about the same, and has now nearly completed said administration, whereby he and others have acquired rights, which may and would be lost if his letters are now revoked. At the same time the appellant prayed that issues might be sent to a Court of law for trial, to determine among other things. “ Whether Julia Y. Mohler, the appellee, has renounced or waived any right which she might otherwise have, to administer upon the estate of Margaret Larsh.” These issues the Orphans’ Court declined to send to a Court of law for trial, and being of opinion that letters had been inadvertently granted to the appellant in ignorance of the right of the appellee, and without proper summons or notice to her, and without any renunciation in writing of her said right, the Court .revoked the letters granted to the appellant, and granted letters to the appellee. In thus refusing to send any of the issues prayed by the appellant to a Court of law for trial, the Orphans’ Court assumed as matter of law, that the appellee could not renounce or waive her right of administration, unless upon proper summons or notice, or unless such renunciation be in writing.

The right of administration is one not resting in the discretion of the Orphans’ Court, hut is founded on positive law. Nusz vs. Grove, 27 Md., 401; Carpenter vs. Jones, 44 Md., 628 , And in the protection of this right, the Code requires that the Court shall summon or notify ²⁸⁹ the parties thus entitled. Article 93, secs. 17-33, of the ■Oode. But yet this is a right which a party may renounce, or which he may lose by failing to make application for 'letters within proper time, or which by his own acts and •conduct he may waive.

In providing that the right of administration may he renounced in writing, the Code does not mean that this -right may not he lost or waived in any other manner. This was expressly decided in Edwards vs. Bruce, 8 Md., 387 . In that case, letters of administration were granted on the 17th of October, 1854, to Edwards, and on the 4th of June, in the following year, Bruce