Hanna v. Munn , 3 Md. 230 ( 1852 )

Eccleston, J.,

delivered the opinion of this court.

We do not consider that the application of Phoebe Hanna for letters of administration on the estate of Nicholas Norris, and the granting of such letters to her, constituted an abandonment and withdrawal of the previous petitions and applications filed by her, for the purpose of preventing the paper purporting to b'e the last will and testament of the said Norris, bearing date the 20lh of September 1832, from being admitted to probat, and for the further purpose of establishing, as the last will and testament of the said Norris, the paper dated the 29th of November 1831.

The sixth section of the act of 1810, ch. 34, makes provision for granting letters of administration when a will is contested. It gives a discretion to the orphans court to grant the letters to the person named as executor, or to the person to whom the largest portion of the personal estate is bequeathed, or to the person who would be entitled to the administration in case of intestacy. And the proviso directs: “That upon a decision had on such contested will, the same proceedings shall be had and the same rules apply, as to the completion of the administration, according to the circumstances of the case, as are prescribed by the fifth chapter of the act to which this is a supplement.”

This act clearly recognises the granting, and continued existence and operation of letters of administration, during a contest as to the validity of a will. And prescribes the proceedings which are to follow, when the decision is made upon the contested will. In this case the record does not show any decision in regard to the will, nor is there any final action or order of the court in that proceeding, until the decree of the 10th of May 1850, from which this appeal is taken, and which assumes the application of Phrebe Hanna for letters of administration, per se, to have been “an abandonment and withdrawal by her of the petitions and applications previously filed.”

Not agreeing with the court in this view, but considering the contest in regard to the will still undecided and not necessarily abandoned, by the application for and acceptance of letters of administration by the appellant, we must reverse the decree of the orphans court and remand the cause for further proceedings.

Decree reversed and cause remanded.