Slay v. Beck

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court for Kent County, passed on the 20th day of August, 1907, directing that certain issues be framed and sent to the Circuit Court for Kent County, to be tried by a jury. The record clearly discloses the facts upon which the controversy rests. It appears that Mr. Richard D. Hynson, of Kent Co.unty, departed this life in the year 1907, intestate, leaving a widow, Mrs. Emma A. Hynson, and five minor children.

He also left a mother, Mrs. Caroline L. Hynson and two sisters, Mrs. Marianne H. Rogers, a widow, and Mrs. Augusta E. Slay, the appellant, in this case. ³⁵⁹ On the 24th of June, 1907, Mrs. Hynson, the widow, renounced her right to administer upon the estate of her deceased husband and requested that letters be granted to William W. Beck and Lewin W. Wickes, the appellees here. Thereupon, on June 25th, letters of administration were granted to the appellees, who filed an approved bond. Subsequently, on July 9th, Mrs. Slay, a sister of the deceased, filed a petition in the Orphans’ Court of Kent County alleging that the grant of letters to the appellees was illegal and asking that the letters of administration granted to them be revoked. She filed with the petition a renunciation from her sister, Mrs. Rogers, to all claim to administer, with a recommendation that letters be granted to the appellant.

The petition alleged that the deceased left no child or grandchild of legal age to have or claim the right of taking out letters on the estate and that he left no brother, nor father; that he left two sisters, and a mother; that the sister, Mrs. Rogers, and the widow, Mrs. Hynson, have renounced their right to administer and she is under the law the next entitled to take out letters of administration, on the estate. That no citation issued out of the Court to the petitioner, nor to the sister, nor mother of the deceased, to appear, and the petitioner had no notice from the Orphans’ Court, nor from any one else of the appointment or of the intention of the Court to appoint the appellees until the appointment of the administrators had been actually made. The appellees answered the petition on the 16th of July, 1907, wherein they specifically admit certain allegations of the petition, but deny that letters of administration were illegally granted to them. They admit that no citation issued to the appellant, nor to Mrs. Hynson, the mother, to appear but alleged that they waived citation and notice to appear.

By the seventh paragraph of the answer they further allege that Mrs. Hynson, the widow, renounced her right to administer on the estate of her husband upon the ground and with the understanding that Mrs. Hynson, the mother, consented to and approved the appointment of the appellees, and with ³⁶⁰ the further understanding that all the other personal representatives of the deceased consented to and approved the appointment. By the eighth and ninth paragraphs it is alleged that letters' of administration were granted with the consent and approval of Mrs. Hynson,the mother,and with the knowledge and approval of Mrs. Slay, the appellant. By the tenth and eleventh paragraphs, it is further alleged that both Mrs. Hynson, the mother, and Mrs. Slay, the appellant, waived and forfeited their right to letters of administration on the estate of the decedent. The answer then avers that the renunciation of the widow was executed and filed under a mistake of fact, that the appellant is not physically capable of administering the estate, that the interest of the appellant is antagonistic to the interest of the widow and the Orphans’ Court is asked to pass an order permitting the widow, Mrs. Hynson, to retract and withdraw her renunciation, .and be restored to her former rights, or to dismiss the appellant’s petition.

On the 22nd of July, 1907, the appellant filed a replication to the appellees’ answer, denying its averments and denying the powrer of the Orphans’ Court to grant any permission to the widow, “to do anything asked for in the answer.” Upon the facts set out in the petition, answer and replication, the Orphans’ .Court rejected ten of the seventeen issues submitted on behalf of the appellees, and directed seven to be sent to be tried by a jury. And from this order, an appeal has been taken. It will not be necessary for us to discuss in extenso the several issues as granted by the Court, because we are clearly of the opinion, that the whole controversy could have been submitted by three issues. There can be no question under the undisputed facts of this case that Mrs. Hynson, the widow, was first entitled to administer upon the personal estate of the decedent, his children being minors.

Code, Art. 93, secs. 18, 19. While administration can be granted to two or more per ³⁶¹ sons, with the consent of the person first entitled, Code, Art. 93, sec.