Cook v. Carr , 19 Md. 1 ( 1862 )

Cochran, J.,

delivered the opinion of this Court:

This appeal was taken by George W. Cook, from an order of the Orphans Court for Baltimore city, refusing to him, and granting to Henry Carr, letters of administration on the estate of Sarah Ann Wigart, deceased. The appellant and Virginia Carr, the wife of the appellee, stand in equal degree of relationship to the decedent, both being grand-children, and the question as to the right of the appellant to be appointed administrator, is the only one presented.

The determination of this question depends upon the construction to be placed upon the provisions of our testamentary laws, by which the right of administration is fixed and regulated. It was not contended that the alleged indebtedness of the appellant to the decedent’s estate, prevented, the right of administration from vesting in him, but that it constituted a ground upon which the Orphans Court was authorized to exercise a discretion, as to which of the petitioners letters of administration should be granted. In our opinion, this view of the case is erroneous. It is true, that in a case where two or more persons are equally entitled to letters .of administration, the Court may, in its discretion, determine to which of them the letters shall go, but its power, in that respect, results from its obligation to grant letters of administration to some one of the persons thus entitled, and not from the circumstances by which its choice may be determined. Although the Court, in such a case, may grant letters of administration to any one of a class of persons preferred by ^aw, it has no power to discriminate against a person or class so preferred, by granting the letters to one standing in a more remote degree of right. In cases within the verge of the Court's discretion, the argument of the appellee, founded on the policy recognized by the testamentary Code, of confiding the .administration of estates to those who, by relationship to the decedent, are presumed to have the largest interest in the distribution, would be irresistible, but it cannot have the effect of enlarging that discretion beyond the limits fixed by the law conferring it. In this case, the appellant and Virginia Carr, although related to the decedent in equal degree, do not stand equal in right to the administration ■of her estate. The 23rd sec, of Art. 93 of the Code, declares a preference of the male relative for administration .over the female of the same degree of relationship, which the Orphans Court should have observed. Under that provision of the testamentary laws, the right of administration vested in the appellant, notwithstanding his indebtedness to the estate of the decedent, and the Orphans Court had neither jurisdiction nor power to deprive him of it by the order passed.

(Decided October 8th, 1862.)

With this view of the question presented, w.e shall reverse the order of the Court below, and remand the case, so that letters of administration may be granted in accordance with this opinion.

Order reversed, and cause remanded.