Appeal from the Circuit Court for Baltimore County; Turnbull, J.
Brune, C. J., and Prescott, Horney, Marbury and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.
This is a controversy over the right to administer the estate of one Bernard Charles Soothcage, who died intestate, a resident of Towson, Baltimore County, Maryland, on April 19,
1960. The appellant, Eisenberg, a Baltimore attorney who had represented the decedent in several matters over a period of some ten years, applied as a creditor of Soothcage for letters of administration and was appointed administrator of the estate by the Orphans' Court of Baltimore County on April 21, 1960. The appellee, Mrs. King, a resident of Glens Falls, New York, and the sister of the decedent, thereafter filed two documents in the Orphans' Court. The first, executed April 28 and filed April 29, 1960, was a renunciation of her right to administer her brother's estate and a request that her Towson attorney, Mr. Hanley, be appointed administrator. The second, filed May 11, 1960, was a petition for the removal of Mr. Eisenberg as administrator and contained a renewal of her request for Mr. Hanley's appointment. On September 14, 1960, the Orphans' Court, following a hearing held on August 31, at which both Eisenberg and Mrs. King testified, entered an order which, according to its terms: (a) revoked the letters of administration previously granted to Eisenberg; (b) revoked authority previously given Eisenberg, as administrator, to prosecute an appeal [in a case below referred to]; and (c) appointed Mrs. King administratrix and accepted Mr. Hanley as her local agent for service of process. Eisenberg appealed from that order under Code (1957), Art. 5, § 25, to the Circuit Court for Baltimore County, and upon affirmance by that Court of the order of the Orphans' Court, he appealed under the same Code section to this Court. Only parts (a) and (c) are challenged on this appeal.
Soothcage's death was sudden and he had no relatives in Maryland. Through the diligence of the Chief of Police of Towson, Mrs. King was reached by telephone a few hours after the death of her brother and she promptly made arrangements for his funeral through Glens Falls and Towson undertaking firms, and she actually paid the funeral expenses. The appellant and appellee agree that the night after Soothcage's death the appellant telephoned the appellee, but their versions of what was said are quite different.
It is undisputed that at the time of Soothcage's death he had a suit pending, in which Eisenberg represented him, in the Baltimore City Court against Air Conditioning, Inc. for
commissions claimed to be due Soothcage as a salesman. Sometime before April 19, this case had been set for trial on April 25.
As given in the Circuit Court, Eisenberg's version of his telephone conversation of April 20 with Mrs. King (he says there was only one, she says there were two conversations) is, in brief, that he told her of his representation of her brother and of the need for the immediate appointment of an administrator because of the imminence of trial of the above suit, that he asked her to come to Maryland to qualify, but that she said she could not afford the trip and would not come. He also stated that Mrs. King informed him that she had been given the name of Mr. Claude A. Hanley, of Towson, as an attorney, that Mr. Hanley had called her on the morning of April 20 with regard to becoming the attorney for the estate and that she would call Mr. Hanley the next morning to tell him that she no longer wanted him to represent the estate.
Mrs. King testified in the Circuit Court that she asked the Towson undertaker to recommend a good lawyer and that as a result she called Mr. Hanley on the morning of April 20 (not vice versa) and asked him to represent the estate, which he agreed to do. Her version of the Eisenberg call or calls is that he called twice. The first time he told her of being her brother's lawyer and of the pending suit and asked if she wanted to come there; she said that she saw no sense in going and sitting in court where she could do nothing. Eisenberg called her back about a half hour later and said he wanted to take care of the estate. She told him she already had Mr. Hanley, "and that's all there was to it." She denied that Eisenberg asked her to come down and take out letters. When asked if he hadn't told her he wanted her to come down, she replied: "I said maybe I could come down if necessary. Then he turned around and said it wasn't necessary."
In their telephone conversation(s) Mrs. King told Eisenberg of the existence of the decedent's (and her) invalid brother and said that he lived in New York. She was not asked and did not give his full name and address.
On April 21 Mr. Eisenberg filed his application for letters, in which he described himself as a ...