Smith v. Young , 5 Gill 197 ( 1847 )

Magruder, J.,

delivered the opinion of this court.

It appears in this case, that the late Motley Young of Prince George^s county, died in July, 1846, intestate, and leaving no widow. Besides two infant children he left a son, Benjamin, the appellant, Eloise, who had married the other appellant, and the appellee. The appellants by their petition applied to the Orphans court of Prince George’s county, for letters of administration to be granted to the appellant Eloise, or to both the petitioners, and to the exclusion of the appellee. This claim is upon the ground that the latter “is, and has been for many years a nun in the convent at Georgetown, in the District of Columbia, a foreign jurisdiction; having taken the black veil, and an oath or vow of total and perpetual seclusion from the world, and renounced all participation in the secular pursuits of the same.” By reason of this, it is alleged that she is disqualified from acting as administratrix.

Pending this petition, the petitioners applied for issues to be sent to a county court. This application was rejected, and the above petition of the appellants was dismissed; letters of administration it seems, were ordered to be granted to the appellee. But of this the appellants are not the persons to complain, if they have no title to the administration. It is unnecessary therefore to notice anything which is said of Benjamin, the son of the intestate.

With respect to the application for issues to be sent to a county court, the act of Assembly authorizes either party to apply for them, if there be any matters properly in issue between the parties; the question in this case is, whether there are any such matters in issue?

It is the opinion of this court, that the court below had no power to refuse letters of administration to the appellee, for thé reasons suggested by the appellants in their petition. Neither by the vows spoken of, nor by vows of any description, can the parties making them, exempt themselves from any of the duties which the State might have required of them, or forfeit any of the rights which would have belonged to them as citizens but for the vows. Every thing stated in the petition by the appellants may be true, and yet the appellee does not subject herself to any pain, penalty, or disability, although it could be proved, that by her application for letters of administration, the appellee had violated the ordinances, and subjected herself to the discipline of the Church, of which she is a member; still in the Orphans court, and upon this application, she can only be regarded as an unmarried daughter of the intestate.

It has been argued, that although the law may not in express words deny to the appellee letters of administration on this estate, yet the vows which she has taken render her incapable of discharging the duties of administratrix.

The answer to this is that the appellee herself, and not the. court, is to judge whether she can consistently with her vows, discharge those duties. The law requires of all who administer upon the estate of a deceased person, bond with ample security for the faithful performance of the duties which they. undertake. Of their other engagements, religious, or otherwise, into which they may have previously entered, the court which is to grant the letters of administration, need not to be informed, and issues designed only to give such information, ought not to be framed and sent to a county court.

The counsel for the appellants have also insisted that although the appellee may not by her religious vows, have disqualified herself as an administratrix, yet our act of Assembly does not say that she shall be preferred to her married sister. If not entitled to claim to the exclusion of her sister, is the claim of the appellant well founded to be associated with her in the administration upon their father’s estate ? This depends upon the act of 1798, ch. 101, sub chap. 5. The 19th section of this sub chapter does say, “ a feme sole shall be preferred to a married woman in equal degree.” But this it is said, ought not to be applied to children of the intestate; it should be connected exclusively with those sections which relate to the grant of letters to collaterals. No reason for this is perceived; this sub chapter prescribes the rules by which the Orphans court is to be governed in granting letters of administration, whether to lineals, or collaterals, relations in the ascending or descending line, males or females, females married, or unmarried, &c., of course applying to each case the rules which are applicable to it. There can be no reason for saying that a rule like this is to be observed in the case of married and unmarried sisters, but it is to be disregarded when the persons claiming the letters are the daughters of the deceased, and certainly there are no words in the 19th section which will connect it exclusively with those sections which entitle collateral relations to the administration. If the appellants could claim in virtue of the 10th section, then it would seem that in order to associate the husband with the wife, as authorized by the 20th section, the latter must not be a child, but a collateral relation of the intestate. Only in the cases spoken of in the 10th and 23rd sections, is administration to be granted “ at the discretion of the court.” The claim in this case of the married daughter to be united with her unmarried sister in the administration, is founded on the 10th section, and can rest on none other in the law. But that section is confined to cases in which there is a widow, as well as a child or children, and of course does not embrace this case, in which there is no widow to be preferred at the discretion of the court to any of the children.

There is then no error in the refusal by the court below to send issues in this case to a county court, there being no matters properly in issue; and this case is like any other in which the controversy for administration upon an intestate’s estate is between two of his daughters, one of them married, and the other unmarried. The latter is to be preferred to the former.

order, affirmed.