Bowie, C. J.,
delivered the opinion of this Court:
Two questions are presented by the appeals in this case: 1st. Whether, in granting letters of administration d. b. n., the Orphans’ Court may, in their discretion, select any competent person, without first summoning those who would be entitled on an original application for administration ? 2nd. Whether, an appeal having been taken from an order revoking the letters de bonis non, and appointing another, the Orphans’ Court, pending that appeal, but before an appeal bond executed, can, on application of the next of kin, modify the order appealed from, by uniting another in the administration?
The testator, William Young, died on the 26th of October 1851, having made his will, and constituted his widow, Maria, and his son, William H., his executors, and devising and bequeathing considerable estate, real and personal, to his grand-son, the appellee. The widow renounced her [324]*324right to the executorship on the Vth of December 185V, and letters testamentary were granted to the son, who died on the 22nd June 1864, leaving his testator’s estate in part unadministered. On the 9th of August 1864, a renunciation of the widow, with a request that administration de bonis non should he granted to the appellant, was filed in the Orphans’ Court, who granted letters, on the same day, to the appellants, without summons or notice to the appel-lee. Soon after, (when does not appear,) the widow filed a petition, alleging her renunciation was procured hy mistake, and praying the letters granted might he revoked. Pending which, on the lVth of September 1864, the appellee filed his petition, claiming, as a grand-child of the testator, a right to the administration de bonis non, in the event of his grand-mother’s refusal, alleging her renunciation had been obtained hy mistake, and praying the letters de bonis non granted thereon might be'revoked.
The appellant and Maria Young, the widow, were made parties to this petition; the former appeared and answered; the latter was not summoned, and did not appear. After proof that the appellee was the only grand-son of the testator and devisee under his will; that Wm. H. Young left neither children nor grand-children, or other descendants; that Maria Young, the widow, is living, and the appellee resided in the city, the Orphans’ Court, on the 29th of September 1864, revoked the letters de bonis non granted the appellant, and ordered letters d. b. n. to he issued to the appellee. From which decree an appeal was entered on the 1st of October 1864, and bond filed on the 2Vth of October ensuing.
In the interval between the passage of the first order, and the filing of the appeal bond, on the 11th of October 1864, the appellee filed his petition, praying that Edward 0. Hinkley, Esq., be associated with him in the administration, which petition was granted by an order passed the same day, from which an appeal was also prayed, &c.
The case of Stockdale & Wife, vs. Conoway, Admr., 14 Md. Rep., 99 to 107, referred to by the counsel on each side, [325]*325is as nearly coincident with the present as is possible; and if it had been decided under the provisions of the Code, instead of the testamentary system of 1798, ch. 101, would he conclusive. These provisions are, however, so similar, that any judicial interpretation of the one, must materially affect the other, They are, in this respect, substantially the same.
The parties entitled to the administration were a brother and sister. The former renounced his right, and recommended the son of the deceased executor, who was appointed administrator de bonis non. The sister filed her petition sixty-eight days after, praying the letters of administration might be revoked, and it was held that they should be revoked, the parties in interest summoned, and the question decided according to the provisions of the testamentary system. The sections of the Act of 1798, ch. 101, regulating the subject of renunciation and granting letters de bonis non, are sub-ch. 14, sec. 1, and sub-ch. 5, sec. 6. The former provides, “that if any person, entitled to administration, shall deliver or transmit to the Orphans’ Court a declaration, in writing, that he is willing to decline the trust, the Court shall proceed as if such person were not entitledand the latter, “in case any executor,” &c., “shall die before the estate shall be fully administered, letters of administration de bo-nis non shall be granted to the person entitled, agreeably to the rules hereinbefore laid down, and the proceedings shall be in all respects the- same as if administration had been originally granted.” 1798, ch. 101, sub-ch. 5, sec. 6.
The 70th section of Art. 93, Code, enacts: “If an executor or administrator shall die before administration is completed, letters de bonis non, or de bonis non cum testa-mento annexo, may be granted at the discretion of the Court, giving preference, however, to the person entitled, if Tie shall actually apply for the same.” To ascertain who are the persons entitled, and the meaning of the terms “actually apply,for the same,” we must refer to the 31st and 33rd sections of the same Article. The former, the 31st, [326]*326describes the order in which next of kin shall be entitled, viz :T/‘If there be neither husband nor wife, nor child, nor grand-child,” &c., “or if these be incapable, or decline or refuse to appear, on proper summons or notice, administration may be granted^at the discretion of the Court.” The 33rd, prescribing notice, says: “It shall not be necessary to give notice to a party entitled to administration, if he be out of the State, nor shall it be necessary to summon or notify collateral relations more remote than brothers or sisters of the intestate, in order to exclude them from administration ; and no relations, except a widow, child or grandchild, father, brother, sister or mother, shall be considered entitled, unless they shall apply for the same.”
The widow, child and grand-child, and others in that class, are entitled under these sections, whether they apply or not, unless they be incapable, or decline, or refuse to appear, on proper summons or notice.
The I0th section, providing for letters de bonis non, at the discretion of the Court, giving preference to the person entitled, if he shall actually apply for the same, must be construed in the spirit of the preceding sections. Its language, literally interpreted, cannot be gratified without supposing a notice or opportunity given to actually apply, before granting the letters of administration de lords non, or an obligation on the Court to revoke, in case an application be made within a reasonable time thereafter.
The .lOth section, construed in connection with the 31st and 33rd, cannot mean that the Orphans' Court may capriciously appoint whom they please, when they please, administrator de lords non, without notice, or opportunity to those entitled of making application. The injunction, “giving preference, however, to the person entitled, if he shall actually apply for the same,” necessarily imports that such person shall have a day in Court to make such application. It would, otherwise, be unmeaning. “The right to administer upon the estate of a deceased relative, is a highly valuable one, which cannot be delegated. The poli[327]
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Bowie, C. J.,
delivered the opinion of this Court:
Two questions are presented by the appeals in this case: 1st. Whether, in granting letters of administration d. b. n., the Orphans’ Court may, in their discretion, select any competent person, without first summoning those who would be entitled on an original application for administration ? 2nd. Whether, an appeal having been taken from an order revoking the letters de bonis non, and appointing another, the Orphans’ Court, pending that appeal, but before an appeal bond executed, can, on application of the next of kin, modify the order appealed from, by uniting another in the administration?
The testator, William Young, died on the 26th of October 1851, having made his will, and constituted his widow, Maria, and his son, William H., his executors, and devising and bequeathing considerable estate, real and personal, to his grand-son, the appellee. The widow renounced her [324]*324right to the executorship on the Vth of December 185V, and letters testamentary were granted to the son, who died on the 22nd June 1864, leaving his testator’s estate in part unadministered. On the 9th of August 1864, a renunciation of the widow, with a request that administration de bonis non should he granted to the appellant, was filed in the Orphans’ Court, who granted letters, on the same day, to the appellants, without summons or notice to the appel-lee. Soon after, (when does not appear,) the widow filed a petition, alleging her renunciation was procured hy mistake, and praying the letters granted might he revoked. Pending which, on the lVth of September 1864, the appellee filed his petition, claiming, as a grand-child of the testator, a right to the administration de bonis non, in the event of his grand-mother’s refusal, alleging her renunciation had been obtained hy mistake, and praying the letters de bonis non granted thereon might be'revoked.
The appellant and Maria Young, the widow, were made parties to this petition; the former appeared and answered; the latter was not summoned, and did not appear. After proof that the appellee was the only grand-son of the testator and devisee under his will; that Wm. H. Young left neither children nor grand-children, or other descendants; that Maria Young, the widow, is living, and the appellee resided in the city, the Orphans’ Court, on the 29th of September 1864, revoked the letters de bonis non granted the appellant, and ordered letters d. b. n. to he issued to the appellee. From which decree an appeal was entered on the 1st of October 1864, and bond filed on the 2Vth of October ensuing.
In the interval between the passage of the first order, and the filing of the appeal bond, on the 11th of October 1864, the appellee filed his petition, praying that Edward 0. Hinkley, Esq., be associated with him in the administration, which petition was granted by an order passed the same day, from which an appeal was also prayed, &c.
The case of Stockdale & Wife, vs. Conoway, Admr., 14 Md. Rep., 99 to 107, referred to by the counsel on each side, [325]*325is as nearly coincident with the present as is possible; and if it had been decided under the provisions of the Code, instead of the testamentary system of 1798, ch. 101, would he conclusive. These provisions are, however, so similar, that any judicial interpretation of the one, must materially affect the other, They are, in this respect, substantially the same.
The parties entitled to the administration were a brother and sister. The former renounced his right, and recommended the son of the deceased executor, who was appointed administrator de bonis non. The sister filed her petition sixty-eight days after, praying the letters of administration might be revoked, and it was held that they should be revoked, the parties in interest summoned, and the question decided according to the provisions of the testamentary system. The sections of the Act of 1798, ch. 101, regulating the subject of renunciation and granting letters de bonis non, are sub-ch. 14, sec. 1, and sub-ch. 5, sec. 6. The former provides, “that if any person, entitled to administration, shall deliver or transmit to the Orphans’ Court a declaration, in writing, that he is willing to decline the trust, the Court shall proceed as if such person were not entitledand the latter, “in case any executor,” &c., “shall die before the estate shall be fully administered, letters of administration de bo-nis non shall be granted to the person entitled, agreeably to the rules hereinbefore laid down, and the proceedings shall be in all respects the- same as if administration had been originally granted.” 1798, ch. 101, sub-ch. 5, sec. 6.
The 70th section of Art. 93, Code, enacts: “If an executor or administrator shall die before administration is completed, letters de bonis non, or de bonis non cum testa-mento annexo, may be granted at the discretion of the Court, giving preference, however, to the person entitled, if Tie shall actually apply for the same.” To ascertain who are the persons entitled, and the meaning of the terms “actually apply,for the same,” we must refer to the 31st and 33rd sections of the same Article. The former, the 31st, [326]*326describes the order in which next of kin shall be entitled, viz :T/‘If there be neither husband nor wife, nor child, nor grand-child,” &c., “or if these be incapable, or decline or refuse to appear, on proper summons or notice, administration may be granted^at the discretion of the Court.” The 33rd, prescribing notice, says: “It shall not be necessary to give notice to a party entitled to administration, if he be out of the State, nor shall it be necessary to summon or notify collateral relations more remote than brothers or sisters of the intestate, in order to exclude them from administration ; and no relations, except a widow, child or grandchild, father, brother, sister or mother, shall be considered entitled, unless they shall apply for the same.”
The widow, child and grand-child, and others in that class, are entitled under these sections, whether they apply or not, unless they be incapable, or decline, or refuse to appear, on proper summons or notice.
The I0th section, providing for letters de bonis non, at the discretion of the Court, giving preference to the person entitled, if he shall actually apply for the same, must be construed in the spirit of the preceding sections. Its language, literally interpreted, cannot be gratified without supposing a notice or opportunity given to actually apply, before granting the letters of administration de lords non, or an obligation on the Court to revoke, in case an application be made within a reasonable time thereafter.
The .lOth section, construed in connection with the 31st and 33rd, cannot mean that the Orphans' Court may capriciously appoint whom they please, when they please, administrator de lords non, without notice, or opportunity to those entitled of making application. The injunction, “giving preference, however, to the person entitled, if he shall actually apply for the same,” necessarily imports that such person shall have a day in Court to make such application. It would, otherwise, be unmeaning. “The right to administer upon the estate of a deceased relative, is a highly valuable one, which cannot be delegated. The poli[327]*327cy of the law, in selecting persons nearest in interest, in preference to others more remote, was to bind up the interest of the administrator with that of persons entitled to the estate.” Young, Admr. of Young, 8 Gill, 286. The completion of an administration is often more important to all concerned than the commencement, Ko reason can he assigned for requiring the parties entitled to he summoned in the first instance, that does not apply to the second.
The 38th section of the same Article enjoins: “If any person entitled to administration, shall deliver or transmit to the Orphans’ Court a declaration, in writing, that he is willing to decline the trust, the Court shall proceed as if such person were not entitled.”
Mrs. Young, the widow of the deceased, being first entitled to the administration de bonis non, it would have been premature and presumptuous in Mr. Knighton to have applied before she had renounced, and when she had declined it was the duty of the Court to have summoned the person next entitled. No other construction is consistent with an impartial administration of justice. Exparte proceedings are inequitable, unfair and oppressive.
It was necessary for the Orphans’ Court to decide upon the petition of Mrs. Young, against the appellant, before granting letters to the appellee; because, if Mrs. Young executed her renunciation by mistake, the Court, upon being satisfied of that fact, would cancel the same, and restore Mrs. Young to her right of administration. The Orphans’ Court were therefore right, in revoking the letters of the appellant, but in error in granting them to the appellee.
The order of the 11th of October 1864, which is the subject of the second appeal, being such as would not prevent that Court from conforming to the decision of the Court of Appeals, whether that decision was eventually for or against the appellant, was not stayed by the first appeal, but being a modification of the order first appealed from, must stand or fall with it, the first being premature and erroneous, for the reasons assigned, the second is equally so.
[328]*328(Decided July 11th, 1865.)
The decree of the Orphans’ Court, revoking the letters of the appellant, will be affirmed, hut so much of the same as direct letters to he granted to the appellee, and to the appellee and Edward 0. Hinkley, Esq., is reversed.
Affirmed in ‘part, and reversed in part, and remanded for further proceedings.