Shomo's Appeal

• Decision Date: 09 March 1868
• Parties: Shomo's Appeal.
• Court: Pennsylvania Supreme Court

57 Pa. 356

Shomo's Appeal.

Supreme Court of Pennsylvania.

March 2, 1868.

March 9, 1868.

March 2d 1868.

Before STRONG, READ, AGNEW and SHARSWOOD, JJ. THOMPSON, C. J., at Nisi Prius

Appeal from the decree of the Register's Court of Berks county: to March Term 1868.

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A. G. Green and J. S. Richards, for appellant, cited 1 Williams on Executors 352; Williams's Appeal, 7 Barr 260; McClellan's Appeal, 4 Harris 110; Ellmaker's Estate, 4 Watts 34; Bieber's Appeal, 1 Jones 159; Hassinger's Appeal, 10 Barr 454.

A. B. Wanner and Samuel L. Young, for C. M. Shomo, appellee, referred to Boyd's Appeal, 2 Wright 246; McCaffrey's Estate, Id. 331; 1 Williams on Executors 282; Bieber's Estate, Hassinger's Appeal, supra.

The opinion of the court was delivered, March 9th 1868, by STRONG, J.

If the widow's renunciation of her right to administer be regarded as having been absolute, the register had a right to grant letters of administration to any one of the sons of the decedent. Within that class the law left to his discretion to make a selection. He was not bound to prefer an elder to a younger son. Our Act of Assembly makes no distinction between those in the same class. It may be a convenience, but it is not a requisition that seniority shall be regarded. But when the register had exercised his discretion, when he had made a choice among the sons, his discretion was gone. It was no longer in his power to revoke the letters granted, and issue them to another, unless for cause. Undoubtedly a register may revoke letters granted to one belonging to the class entitled to administration, if the grantee have a personal disqualification. This was ruled in Bieber's Appeal, 1 Jones 157. When, however, an appointment has been made and the appointee belongs to the right class, and has no personal disability, revocation of the appointment by the register is a transgression of his power.

In this case it appears that there was a widow of the decedent. Hers was the first right. But she renounced in favor of her son William D. Shomo, who was also a son of the decedent, and the register granted letters of administration to him. He subsequently revoked the letters thus granted, and granted others to Charles M. Shomo, an elder brother. After a careful review of the evidence, we discover no cause for such a revocation, nothing that justified it. The causes assigned are two. The first is that the letters issued to William D. Shomo were procured by misrepresentation. Of this there is no satisfactory evidence. The register states William Shomo represented that the other sons knew letters would be taken, and made other representations, from which he understood the other sons were all agreed that letters should be granted to him. What the other representations were does not appear, but the register states that being assured he could select from the sons any one competent to administer, that an older son had no priority where the interests were equal, and being informed that the other sons were aware letters would be granted, he granted them. He adds that it appeared to him the other sons did know that letters were to be taken out by the widow and William jointly, but there was no proof Charles knew William would take them out alone. These are but two unsworn statements, and they are far beyond what was sworn to in the Register's Court. But giving them their fullest effect, they come far short of proving any fraudulent representations by William D. Shomo, and it is manifest that it was not for this cause, nor for the other urged here, that the letters were revoked. It is altogether probable the register thought he had made a mistake in granting them to a younger son, without the assent of an elder one. Such a mistake, if it was one, was a...