Appeal from the Orphans' Court for Montgomery County; Plummer and Doyle, JJ.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Brune, C. J., delivered the opinion of the Court.
This is an appeal from an order of the Orphans' Court for Montgomery County, denying the appellants' petition for the removal of the appellee as administrator of the estate of Dorothy Mose Johnson, an intestate. The case comes before us on the brief and appendix of the appellants, without oral argument, and without any brief or argument on behalf of the appellee. The parties are: Frederick Thorpe Johnson, 2nd, the only child of the decedent, a minor under the age of eighteen years, who is entitled to the entire net estate of his mother, real and personal, and his uncle, Stanley A. Johnson, his father's brother, who are the appellants; and Frank J. Macaboy, Sr., the appellee, a half-brother of the decedent.
The Orphans' Court on December 6, 1960, granted letters of administration to Macaboy upon his petition therefor filed
that day. The appellants' original petition to revoke the letters was filed on December 20 and a supplemental petition on December 21, 1960. The case came on for hearing on December 28th. The grounds upon which the appellants sought the removal of the appellee were presented by counsel and certain proffers of evidence were made, but the Orphans' Court declined to hear testimony and denied the petition for removal. It seems to have been agreed at the hearing that the appointment of Macaboy (who was not entitled to share in the estate) was discretionary with the Orphans' Court. The validity of his original appointment was challenged to some extent on the ground that it was premature. Such a contention seems untenable under such cases as Williams v. Addison, 93 Md. 41, 48 A. 458, and Dorsey v. Dorsey, 140 Md. 167, 116 A. 915, and it does not appear to be pressed on this appeal. The Orphans' Court took the view that neither the objections and argument presented nor the evidence proffered were sufficient to call for the removal of Macaboy as administrator.
In some respects this case is similar to Horton v. Horton, 157 Md. 127, 145 A. 355, but it also has its differences. In Horton the appellants were children of the decedent by a former marriage and the appellee was his widow. All were included in the group from which the administrator should have been appointed. The Orphans' Court of Baltimore City granted letters of administration to the widow upon her application. The appellants thereafter filed a petition to have her letters revoked, and as a secondary form of relief they sought to have one of the appellants appointed as a co-administratrix. They alleged that they had received no notice of the widow's application and that they had been lulled by the widow into the belief that no action would be taken without an effort first being made to reach an amicable settlement of differences. At a hearing on the petition for removal before the Orphans' Court, arguments of counsel for both sides were presented and each side offered to produce evidence on the question of notice. The Orphans' Court declined to hear evidence and denied the appellants' petition. Judge Offutt,
for this Court, stated that the main question was whether the Orphans' Court acted improvidently in granting letters of administration to the widow, without having notified the appellants, who resided within its jurisdiction, of her application, and that, subsidiary to that question was "the propriety of the unusual procedure followed by the Court in refusing to allow the petitioners to offer evidence in support of their petition." It was held that on the allegations of the appellants' petition, which were to be treated as true in the absence of a hearing thereon, the Orphans' Court had acted improvidently in making the original appointment and that it should have taken testimony on the appellants' allegations as to lack of notice. This Court pointed out that the Orphans' Court was bound to exercise its discretion in making its selection from among those entitled to be appointed, that it was bound to give notice of the application to the appellants and that it could not be assumed that the Orphans' Court would have failed to consider such evidence as those entitled to notice (the appellants) might have offered on the selection of an administrator or administratrix. Hence, this Court concluded that the Orphans' Court had failed to exercise its discretion in making the appointment, and that the appointment could therefore not be upheld as an act done in the exercise of its discretion, nor could it be upheld simply on the ground that such an appointment was in accordance with the custom of the appointing court. The order appealed from was reversed and the case was remanded for further proceedings, including the taking of testimony on the appellants' petition.
The Horton case was explained and distinguished in Baldwin v. Hopkins, 171 Md. 97, 103, 187 A. 884. It was approved, but was also distinguished in Langfelder v. Langfelder, 189 Md. 88, 92-93, 54 A.2d 312. It is distinguishable here. The first vital difference between the Horton case and this is that in the Horton case notice of the application for letters was not given to persons entitled to such notice, but here notice was not given to persons who were not entitled to notice. The decedent's son was below the age of eighteen years and therefore could not have been appointed as administrator,
as the appellants concede. Code (1957), Art. 93, §§ 21 and 59; and see Cephalis v. Briscoe, 202 Md. 419, 96 A.2d 602, where a minor above the age of eighteen was held qualified. The other appellant has no standing under our statutes which would entitle him to appointment. The appellants appear to have been under the wholly mistaken idea that relationship to the sole heir and distributee (the son) conferred some right to administer the estate of the decedent. It is only relationship to the decedent which is the foundation for such a right and hence for any right to notice which is incident thereto. Since neither of the appellants was entitled to appointment as administrator or was a member of a group from which selection of the administrator should be made, there was no need under Code (1957), Art. 93, § 36, to notify either of them of the appellee's application for letters. See Dorsey v. Dorsey, 140 Md. 167, 171, 116 A. 915; Jones v. Harbaugh, 93 Md. 269, 48 A. 827; Ehlen v. Ehlen, 64 Md. 360, 1 A. 880.
In Horton v. Horton, supra, the question of whether or not the Orphans' Court should have heard the testimony of the appellants' witnesses was, as Judge Offutt pointed out, subsidiary to the main question of whether the original appointment had been improvident because of lack of notice to persons entitled to notice. Testimony there proffered by the appellants was intended to show the absence of notice, and that went to the validity of the original appointment. Such is not the case here. The Orphans' Court appears to have considered the proffered testimony and to have concluded that the facts sought to be established (as distinguished from inferences of bad faith ...