Wilcoxon v. Reese

Alvey, C. J., delivered the opinion of the Court. Jacob Reese died in IS^, and by his last will, executed by him in 1865, which was admitted to prohate, he appointed John Derr his executor. Derr died in the lifetime of the testator, and upon the probate of the will, soon after the death of the testator, letters testamentary were granted to John Getzendanner. Why such letters ⁵⁴⁴ were granted, instead of letters of administration with the will annexed, is not apparent, nor is it material in this case to inquire.

Getzendanner proceeded under his letters, and completed the administration in 1873. By the will of the testator he devised certain real estate therein mentioned to his wife for life, and after her death that the same should he sold by his executor named in the will, and the proceeds divided as therein directed. Getzendanner, the party to whom the letters testamentary had been granted, died in 1879, and the widow .of Jacob Reese, the testator, survived until the 8th of November, 1884. It was not until then that the- power of sale of the real estate could, under the will be executed; and as the personal estate had been fully administered, there was no occasion or legal ground for the grant of letters of administration de bonis non, until after the death of the devisee for life, even supposing that the power of sale under the will could, under the special circumstances of the case, be exercised by an administrator de bonis non, with the will annexed.

But it appears that in 1879, immediately after the death of Getzendanner, upou a mere ex parte application, without legal notice or summons to those entitled to administer, the appellant, who had no claim to the administration or interest in the estate, was granted letters of administration de bonis non, with the will annexed, though there was nothing whatever then to be administered. These letters were held in a state of dormancy until after the death of Mrs. Reese, when it was claimed that the appellant, by virtue of his letters of administratration de bonis non, with the will annexed, had the right and power under the will to sell the real estate. It was then that an application was made to the Orphans’ Court to revoke the letters previously, granted to the appellant, and to grant similar letters to the appellee, he being a nephew of the testator and one of the parties interested in the proceeds of the sale of the real estate devised to be ⁵⁴⁵ sold. The letters held by the appellant were revoked, and letters were granted to the appellee, by an order of the 4th of December, 1884, and it is from that action of the Orphans’ Court that this appeal is taken.

It is certainly clear that the Orphans’ Court are not clothed with power to appoint an administrator de bonis non, cum testamento annexo; whom they please, and when they please, without summons or legal notice to the parties entitled to such letters. Here the appointment of the appellant was not only irregular, hut was prematurely made, even upon the claim of the appellant that an administrator de bonis non, with the will annexed, could properly execute the power of sale after the death of the devisee for life. Thomas vs. Knighton, 23 Md., 318 . And that being the case, the Orphans’ Court committed no error in revoking the letters granted to the appellant; and from that part of the order