Lee v. Allen

Decision Date16 November 1904
Citation100 Md. 7,59 A. 184
PartiesLEE v. ALLEN.
CourtMaryland Court of Appeals

Appeal from Orphans' Court, Harford County; Geo. J. Finney, E. Carvil Tolley, and Wm. P. Trimble, Judges.

Proceedings by John L. G. Lee, trustee, for the revocation of letters of administration granted to E. M. Allen, as administrator of the estate of John M. Dinan, an absentee, from an order refusing to revoke the letters, the petitioner appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BOYD, PEARCE, and SCHMUCKER, JJ.

John L. G. Lee, in pro. per.

James J. Archer, for appellee.

BOYD, J. This is an appeal from an order passed by the orphans' court of Harford county refusing to revoke the letters of administration granted the appellee on the estate of John M. Dinan, and dismissing the petition of the appellant A motion to dismiss the appeal was made by the appellee, but we deem it best to first consider the main question in the case.

1. On February 1, 1904, Stella C. Shure and Mollie G. Dinan filed in the abovementioned court a petition for the appointment of an administrator of the estate of John M. Dinan. In it they alleged, first, that they are the sisters and only heirs of John M. Dinan; second, that said Dinan "left Harford county more than seven years ago, since which time they have no knowledge or information whether he is dead or alive"; third, that in an equity case in the circuit court for Harford county there was awarded to said John M. Dinan $103.33, which sum remains in the hands of John L. G. Lee, trustee in said case, and it may be that other property to which the said Dinan is entitled may be discovered. "To the end, therefore, that the property of the said Dinan may be collected and distributed according to law to his heirs," they pray that letters of administration be granted to the appellee. That was done on February 18, 1904, and he qualified the same day. On March 5, 1904, the petition of the appellant above referred to was filed, and it was dismissed by the court below on May 2d.

That the letters of administration were improvidently granted will be manifest by reference to the act of 1896 p. 434, c. 240, being section 230 of article 93 of the Code of Public General Laws. By that section the orphans' court is authorized to take probate of wills, grant letters testamentary and of administration, and do other acts "relative to the affairs of deceased persons; and also of persons who by their uninterrupted absence, unheard of for above seven years, are supposed to be dead"—provided that when any will or codicil is presented for probate, or application is made for letters testamentary, or of administration upon the estate of a person so absent and unheard of for above seven years, the person presenting such will or making application for letters shall file a written petition, under oath, setting forth "[a] the time when and place where absentee was last heard of by his family or friends; [b] that diligent inquiry has been made among the family, relatives and friends of such absentee; [c] and that advertisement and inquiry by letters or otherwise have been made, at the most likely place of his last residence, and that no information, by any of these means, has been obtained of such absentee since the date set forth in the petition, which must be above seven years prior to the date of the petition; [d] and that the applicant verily believes such absentee to be dead." The letters in brackets are not in the statute, but we have thus separated its provisions so it can be more easily seen how far short of them the petition of the applicants has fallen. The statute then provides that the court shall order notice by publication, to be given in one or more newspapers, stating (if such be the object, as it was in this case) that application had been made for letters of administration upon the estate of such absentee, and warning him to appear on or before the day fixed in such order and show cause why letters be not granted. It then provides that such notice shall be published as the court may direct, not less, however, than once a week for 4 successive weeks, 15 days before the time fixed by such order for the appearance of the absentee, "and if no appearance be made, the court may, if it see fit, summon before it and examine, under oath, any relations or friends of such absentee respecting his absence, and if no information or evidence shall be obtained indicating the probable existence of such absentee, the court may judicially determine such absentee to be dead," and may proceed to grant the letters, etc. The section concludes by saying that "such probate and such letters, either testamentary or of administration, when granted, shall have the same force and effect as if granted upon the estate of a person proven by direct testimony to be dead."

The Legislature has by this statute materially changed the law as...

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