Stocksdale v. Conaway

LeGrand, C. J., delivered the opinion of this court. This is an appeal from an order of the orphans court, for Carroll county, refusing to revoke letters of administration, which had been granted to the appellee, upon the estate of Henry Cover, and dismissing the petition of the appellants, asking the revocation and the grant of letters to them. The record discloses these facts:—Henry Cover died in 1857, leaving a will, in and by which his son-in-law was appointed his executor. The heirs, devisees and legatees of the testator, were, a son, Josiah S. Cover, and two daughters, Susannah Conaway, wife of Reuben, and Elizabeth Stocks-dale, wife of Nathan, and a grand-daughter, the child of a deceased daughter.

The person designated as executor qualified as such, and entered upon the duties of the office, but died in December 1858, without having settled up the estate. Josiah S. Cover, who was entitled (being the eldest male child of the deceased) to letters de bonis non, filed in the orphans court a renunciation of his right to letters of administration, “desiring, at the same time, that letters might be granted to John H. Conaway,” a son of the deceased executor, which was accordingly done. On the 28th of February 1859, sixty-eight days after the granting of the letters to the appellee, the appellants filed their petition, asking for the revocation of these letters, and the granting of others to the appellant, Elizabeth. At a subsequent period Josiah S. Cover filed his petition, asking to be made a party to the proceeding, and protesting against the revoca ¹⁰⁶ tion, but insisting that if the letters be revoked, that his renunciation be considered as withdrawn, and his right to letters as asserted.

This petition, like that of the appellants, was dismissed. The appellant, Elizabeth, is the eldest child of Henry Cover, and, as such, if there be no unmarried sister, is entitled to letters in preference to ail others, save Josiah S. Cover, unless that right has been lost by her acts or laches. The first inquiry, then, is:—What is the effect of the renunciation of Josiah S. Cover? The law gave to him the right to administration, but did not make it incumbent upon him to exercise it.

There is no reason why his election should not be as binding on him, in a case like the present, as it would be in any other; and there can be no doubt that a party may conclude himself by his admissions and acts; “an election being once made, so as to charge the defendant, cannot, at a subsequent period, be prospectively retracted or abandoned.” Evans et al., vs. Iglehart, 6 Gill and Johnson, 171. in the case of Thornton vs. Winston, 4 Leigh, 152 , it was held, that where an executrix declined to qualify as such, and agreed that administration with the will annexed, should be granted to her daughter, reserving her right to qualify after her daughter’s death, such renunciation was absolute and perpetual, and could not be revoked. That case also decided, what was decided in Maryland in the cases of Hoffman vs. Gold, 8 Gill & Johns., 79;