President of Georgetown College v. Browne

Miller, J., delivered the opinion of the Court. Mary E. Browne executed her will in 1844, by which she devised and bequeathed all her property, real and personal of every hind and description, to Thomas Lilly, whom she also appointed her sole executor. Lilly died before the testatrix, leaving a will by which he gave all his property in possession, and all to which he might be in any wise entitled, to the president and directors of Georgetown College, a corporation in the District of Columbia, incorporated by Act of Congress in 1844. Subsequently, in 1867, Miss Browne died, leaving her will unchanged.

The real question in dispute is, who is entitled to letters of administration on her estate ? or, in what mode, or by what rule shall such letters be granted ? though the particular order appealed from is an order dismissing the petition of the college claiming the right to designate the party to be appointed, of, if no such right exists, then praying that letters may be granted to a sister of the deceased and her husband. The party on the other side, who claims that he is entitled by law to have letters granted to him, is the appellee, the sole surviving brother of the testatrix; she having died, leaving neither husband, father, child nor grandchildren. ⁴⁵⁵ It is very clear the corporation is not residuary legatee under this will, and can claim no right to administer on that ground. Its right to the property is derived solely from the will of Tilomas Lilly, and his estate is not the egtate to be administered upon. But even if the will of Miss Browne bad devised and bequeathed all her property directly to this corporation, it could not have claimed administration, because we take it to be well-settled, that a corporation cannot become an executor or administrator; nor has the English practice of allowing a corporation, when named executor, to designate a person styled a syndic, to receive administration with the will annexed, ever prevailed in this State, but, on the contrary, all power of delegation over the right has been expressly repudiated and denied by our Courts.

All right of the corporation, and all right of its appointees as such to administer, being out of the case, the question recurs, lias the surviving brother of the testatrix, who appears and claims the appointment, any right by law thereto ? The case is one where a testatrix has left a will, and the party named as executor therein lias died before the will took effect, thus calling for the grant of letters of administration with the will annexed, in the first instance, and where the residuary legatee under the will has also died before the testatrix. Is there any provision of our testamentary law covering such a case, or is it a casus omissus in which the grant of letters must be left to the discretion of the Orphans’ Court, to be guided and controlled by the general policy of the system which requires the right of administration should follow the right to the estate? In our opinion, the case is provided for by the statute.

The Code, (Article 93,) in its arrangement of the testamentary law under the sub-division “ administration,” which extends from sections 14 to 40 inclusive, embraces the provisions for administration and the order of preferences between the next of kin. Amongst these, sections 2-1 and 23, which provide that brothers and sisters shall be preferred, if there be no widow, child, grand-child or ⁴⁵⁶ father, and that males shall be preferred to females in equal degree, would, it is conceded, extend to this case if it were one of intestacy. But are all these provisions confined to such cases? We think not.

In immediate connection with them is to be found section 34, (which is also placed in the same connection in the original law of 1798,) by which it is declared, that “if letters of administration, with the will annexed, are to be granted, and there bo a residuary legatee or legatees in such will, he or they shall be preferred to all except a widow, and it shall be incumbent on the Court to proceed in the manner directed by law with respect to executors within the State, before administration shall be granted to any other person; and a male residuary legatee shall be preferred to a female.” The purpose, intent, effect and true construction of this section are to be ascertained by reading it in connection with antecedent and subsequent provisions upon the same subject. Its meaning and effect, rvhen thus read and considered, appear to be thus: The law having, in previous sections provided for the grant of letters of administration generally in cases of intestacy, and having defined with great exactness and particularity who should be entitled, and what order of preference should exist and be observed, provides in this section for a class of cases, numerous and of frequent occurrence, where letters of administration, with the will annexed, must be granted in the first instance, as where no executor is named in the will, or where as here the party so named may have died before the testator, and in that event the direction is, that the residuary legatee, if there be one, “shall ho preferred to all except a widow,” that is, to all who are entitled to preference by the prior sections except the widow, and it is made incumbent on the Court, before administration shall, in such cases, “ be granted to any other person,” that is, to any other person who, but for the intervention of the legatee, would be entitled to administer, to have a summons issued for the residuary legatee, as provided in section 44 for the case of an executor within the State. In other ⁴⁵⁷ words, when cases of this kind arise, the Orphans’ Court are directed to grant letters in the first place to the widow, if she chooses to take them — next, to the residuary legatee, if there be one, preferring males to females; and if there be no such legatee, or none capable of acting, or if, on being summoned, he shall fail to appear and give bond, then they are to proceed and grant the letters to the other persons designated in the preceding sections, observing the order of preference there prescribed. This reading is not only in our opinion warranted by the language of the section itself, but makes, and is essential to make, the entire system uniform and complete.

A brief consideration of the piovisions of some of the subsequent sections will, wo think,