Hanbest's Estate

Opinion by

William W. Porter, J.,

This case primarily involves the interpretation of the language of the act of March 15, 1832, which provides that “ no letters of administration shall in any ease be originally granted upon the estate of any decedent after the expiration of twenty-one years from the day of his decease except by the order of the register’s (orphans’) court upon due cause shown.” The court below has held that the act applies only to cases in which no letters of administration have been previously granted, and bave issued an order to sell real estate in partition, to administrators d. b. n. c. t. a., to whom letters were issued by the register more than twenty-one years after the death of the decedent in a case where former letters had been more than once issued.

The purpose of the legislation quoted is manifestly to take from the register and confer upon the orphans’ court the power and duty to determine whether letters of administration shall be granted upon the estate of a decedent after twenty-one years. It is to be observed that the act does not say that no “ original ” letters of administration shall be granted by the register, but that no letters shall in any case be “ originally granted.” The construction given by the court below is only made possible by transplanting the adverb “originally” from its position in the sentence and by inserting it in adjective form before the words “ letters of administration.” The true significance of the adverb is in the synonymous expression “ in first instance,” thus imposing on the orphans’ court the duty primarily to determine the propriety of the grant of letters. The intervention of the court to prevent unnecessary and intrusive issuance of letters of administration long after the decedent’s death is quite as necessary in the case of a second or third issuance as in the case of an original grant.

From what has been said it will be seen that the letters of administration in this case could only have been properly granted pursuant to an order of the orphans’ court upon due cause shown, and that the parties to whom the letters were issued by the register gained no status in the present proceeding by virtue of the grant. To this extent at least may we go in holding the register to be without jurisdiction, whatever effect such grant of letters might have in imposing liability upon those acquiring or acting under it. See Foster v. Commonwealth, 35 Pa. 148; Wall v. Wall, 123 Pa. 545.

The order of sale was issued to “ John De Haven Hanbest and Hannah A. Hanbest, administrators de bonis non cum testamento annexo of Thomas Passmore Hanbest.” The order is to the parties named qua administrators. By section 44 of the act of February 24, 1834, it is provided that “whenever any real estate shall be ordered to be sold under proceedings in partition the orphans’ courts are hereby authorized and required .... in case there be no executor or administrator, to appoint some suitable person trustee for- the purpose of making the sale,” etc. The order in the present case is neither based upon suitability ascertained nor to parties nominated as trustees. It may be that the parties claiming as administrators will be found by the orphans’ court upon investigation to be in their proper persons suitable to act under appointment as trustees to make the sale. On this subject we express no opinion. It involves the exercise of a discretion which is lodged by the terms of the act in the orphans’ court. - The order to the administrators to make the sale is vacated and the record is remitted to the end that the proceeding may go forward in accordance with the views herein expressed.