Brubaker's Appeal

• Decision Date: 23 May 1881
• Citation: 98 Pa. 21
• Parties: Brubaker's Appeal.
• Court: Pennsylvania Supreme Court

98 Pa. 21

Brubaker's Appeal.

Supreme Court of Pennsylvania.

May 4, 1881.

May 23, 1881.

May 4th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

APPEAL from the Orphans' Court of Lancaster county. Of May Term 1881, No. 75 H. C. Brubaker and A. J. Eberle, for the appellant.— The register having issued letters to one sister, in the exercise of a discretion reposed in him by the Act of Assembly, the Court has no jurisdiction to review his action. The register himself could not revoke his action except for cause: Shomo's Appeal, 7 P. F. Smith 356; Hood on Executors 64, 467; Toller on Executors 89; 1 Williams on Executors 371. The Court acknowledged that a joint administration by the sisters would be improper under the circumstances, and to escape that fell into the more serious error of awarding a separate administration to each, for which there is no warrant in law.

S. P. Ely, for the appellee.—The sisters were entitled to equal rights in their father's estate, including the right of administration, and to share the commissions incident thereto, which in this case will amount to $3,000. The letters to Mrs. Brubaker were obtained by a trick, in violation of an understanding that nothing should be done until both should be heard by the register. Courts will not encourage indecent haste in securing administration by such means. As the two daughters are the only persons interested in the estate, no injustice can arise from the fact that letters were issued to each, instead of to them jointly. Such is the practice in England, and our statute does not forbid it.

Mr. Justice STERRETT delivered the opinion of the Court, May 23d 1881.

Jacob Shaeffer survived his wife and died intestate August 14th 1880, leaving as his only heirs-at-law two married daughters, Elizabeth Brubaker and Lavina 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 Mrs. Brubaker, was granted, to show cause why Mrs. Wolf should not be joined in the administration. Under this rule depositions were taken by both parties, and the Court, after hearing, on January 29th 1881, made a decree sustaining the 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 his 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;...