Brubaker's Appeal ( 1881 )

Mr. Justice Sterrett

delivered the opinion of the Court,

Jacob Sbaeffer survived his wife and died intestate August 14th 1SS0, leaving as his only heirs-at-law two married daughters, Elizabeth Brubaker and La vina Wolf. Ten days after his decease letters of administration on his estate were duly granted by the register to Mrs. Brubaker, the elder daughter; and on September 2d the petition of the younger daughter and her husband was presented, praying that she be joined with her sister in the administration already granted. This application was refused by the register, and thereupon the petitioners appealed from his decision to the Orphans’ Court, and a rule, with notice to Mi’s. Brubaker, was granted, to show causo why Mrs. Wolf should not be joined in the administration. Under this rule depositions were taken by both parties, and tlie Court, after hearing, on January 29th 1881, made a decree sustaining tbe appeal, and ordering letters of administration to be issued to Mrs. Wolf “ on her father’s estate, upon her entering good and sufficient security with the register for the faithful performance of her duties as administratrix, providing her husband’s assent is obtained ; which assent will be evidenced by his joining in the administration bond.”

It is contended that the Court erred in thus ordering letters of administration to be issued to Mrs. Wolf, and in forcing a joint administration, against the consent of Mrs. Brubaker, to whom letters had been previously granted.

The learned judge in Iris opinion says : “ The present administratrix and the appellant” are both equally competent to perform the duties of administrator; both stand in equal degree of relationship to the decedent; both have equal share or interest in his estate; and looking ou this appeal, we look at the whole case on its merits and the rights of the respective parties, and we are of the opinion that letters of administration should be granted to this appellant, that both may be on an equality. But tlie C'ourt does not feel at liberty to enjoin a joint administration between these sisters ; indeed, the prevailing rule is not to enforce a joint administration on unwilling parties.”

It is very evident from this that the Court recognized the impropriety of attempting to create a joint administration against the protest of one of the parties thereto. The nature of the oflice forbids it. Joint administration necessarily involves joint liability, and no one can be compelled to assume such responsibility. Due regard to individual rights, as well as the interest of the estate, require that administration should not be committed to two or more persons unless they mutually agree to accept the trust. Nor does the decree in this ease require joint administration. If it did, it would be manifestly wrong; but its effect is to create two separate, co-ordinate administrations on the'same estate, and for that reason it is equally objectionable. Such a thing is unknown to our jurisprudence, even in theory, and in practice it would be entirely impracticable. Under the English statute, the Crdinary may commit the administration to the widow and next of kin jointly, or he may grant to one exclusive administration of a particular portion of the goods of the intestate, and to the other a separate administration of the residue; but no warrant for any such practice as that contemplated by the decree of the Orphans’ Court can be found in our statute.

When the class primarily entitled to administration consists of several persons, it is the duty of the register to grant letters to such one or more of them as he shall judge will best administer the estate. lie may thus grant letters to them all jointly, if they so desire; or, in liis discretion, he may select one of them and commit the administration to him alone, to the exclusion of the others; and, when properly exercised, his discretion is not the subject of review either in the Orphans’ Court or here. lie is not bound to select the oldest in preference to the youngest of the class entitled to administration. Primogeniture gives no right of preference, so as to weigh against the wish of the majority of interests; yet, if things are precisely equal — if the scale is exactly poised — being the elder brother would indine the balance: Hood on Executors G4; 1 Williams on Executors 427. And the same principle applies to the elder of two sisters. In Shomo’s Appeal, 7 P. E. Smith 35G, it is said that among children the right does not depend on seniority ; it is entirely in the discretion of the register; but when he has exercised his discretion by selecting one of the sons, it is no longer in his power to revoke the letters elms granted and issue them to another, except for sufficient cause. “ Wlieu administration lias been committed to any of the next of kin, others, even in the same degree of kindred, have, during the life of the administrator, no title' to a similar grantHood on Executors, 64. In the case before us the two daughters of the intestate were equally competent to administer, and the register might have granted letters to both jointly if they liad so desired; but he was not bound to do so. In the exercise of his discretion he selected Mrs. Brubaker, who requested that letters should be issued to herself alone. Having done so, it was not in his power to revoke the letters thus granted, or to join the younger sister in the administration against the will of the other. Nor is there 'anything in the circumstances, as disclosed by the testimony, to justify the Court in reversing the decision of the register, and creating a dual adminfetration, which, if it could be permitted to stand, would undoubtedly be prejudicial to the interests of the estate.

The decree of the Ordhans’ Court is reversed and set aside, and the decision of the register is affirmed; aud it is ordered that the costs, including the costs of this appeal, be paid by the appellee.