#### Guidin’s Estate.

1. A testator gave to Ms wife real and personal estate in lieu of dower, and the residue to his children; he left a widow and *children; the*wddow accepted under the will; Ms executors, and all his children but two died, leaving chil- ■ dren; one of his children renounced his right to administer, the other was a married woman; all the others requested that administration should not be .granted to her, but to a stranger. *Held,*That she was entitled to letters.

2. A daughter, standing in the first class, could not be passed over unless there was evidence of unfitness.

3. Coverture alone is not a disqualification, although it may be a circumstance with other facts to determine the discretion of the register.

4. McClellan’s Appeal, 4 Harris, 110; Williams’s Appeal, 7 Barr, 259, authority.

*363March 9th, 1876.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

Appeal from the Orphans’ Court of *Berks*County, of January Term, 1876, No. 234.

In the estate of Samuel Guldin, deceased.

Samuel Guldin died on the 27th of December, 1871, having made a will by which he devised to his wife, Elizabeth Guldin, for life, a farm on which they resided, and gave her, also, all his furniture, live stock, etc., on the farm, and one hundred and forty-one shares of bank stock. This provision was declared to be in lieu of dower. lie made devises and bequests to his children, and gave the residue of his estate to his five children, Simon Peter, John F., Elam Y., Mary Ann, and Sophia H., share and share alike. He appointed his sons, Simon P. and John F., executors of his will, and letters testamentary were issued to them.

On the 31st of May, 1873, Simon P. Guldin, one of the executors, died, and on the 13th of May, 1875, John F. Guldin, the other executor, died.

The order of the ages of the children of Samuel Guldin is as set out in the residuary clause.

Sophia H., the youngest, was intermarried with Alfred Gross. Simon P. Guldin left three children, Sallie E., Anne, wife of Daniel Kauffman, and George W. Guldin, a minor, having for his guardian George K. Lorah. . John F. Guldin left six children, Samuel R. Guldin, and Ellen, Emily, Kate, John, and Charles, minors, having for their guardians Daniel L. Rhoads and James Rhoads. Elam Y. Guldin was an adjudicated bankrupt. Mai'y Ann Reinhart died, leaving to survive her, her husband, Reuben Reinhart, and three minor children, Hannah, Sarah, and James, who had for their guardian Daniel Rhoads. .

On the 21st of May, 1875, Elam Y. Guldin renounced his right to administration d. b. n. c. t. a. of Samuel Guldin’s estate.

On the 22d of May, Samuel R. Guldin, grandson of testator, and George K. Lorah, applied to the register for administration d. b. n. c. t. a. of the estate of the testator.

On the 24th of May, Sophia II. Gross, with her husband, entered a caveat against the grant of administration to Samuel R. Guldin and Lorah.

On the 25th of May, Elizabeth Guldin, the widow, renounced her right to administer, on condition that administration should be granted to Samuel R. Guldin and Lorah. On the same day the register refused administration to S. R. Guldin and Lorah.

*364On the 31st of May the widow, Elizabeth Guldin, applied for letters of administration ; the register the same day refused the application.

On the 14th of June, a caveat by the other parties in interest, was filed against granting letters to Mrs. Gross.

On the 15 th of June Mrs. Gross applied for letters.

On the 25th of June another caveat against granting her letters was filed by the other heirs,, with the request to the register to appoint Daniel L. Rhoads or Jeremiah Van Reed.

On the 22d of June the register refused the application of Mrs. Gross; and on the 29th administration was granted to Jeremiah Van Reed.

The widow, on the death of the testator, took possession of the land and chattels given her by the will.

The widow, S. R. Guldin, and Lorah, and Sarah, and Mrs. Gross, severally appealed to the Orphans’ Court from the decrees of the register refusing to grant letters to them respectively.

The Orphans’ Court reversed the decree of the register refusing letters to Mrs. Gross, revoked the letters to Van Reed, and directed the register to grant letters to Mrs. Gross, Van Reed, J., delivering the following opinion:

“.....The question presented here is simply whether Mrs. Gross, one of the children of the testator, and entitled to a share of the general residue of the estate, can be passed by and a stranger be appointed, even though the majority of legatees, having the greatest stake in the estate, combine to have him appointed administrator. It has nowhere been decided that this can be done, so far as we can find. The act of Assembly, 15th of March, 1832, commands the register to give letters of administration, when necessary, to the widow of the decedent, if any, or to such of his relations or kindred as by law may be entitled to the residue of his personal estate, or a share therein, after payment of debts, and in all cases of an administration with the will annexed, where there is a general residue of the estate bequeathed, the right to administer shall belong to those having the right to such residue. The act makes no provision for nominees, or substitutes for the parties in interest. It is a mandatory rule to the register in respect to the parties themselves. The discretion given to the register is limited to a selection from those asking, if competent, in each class in their order. McClellan’s Appeal, 4 liar., 115, citing Tol. 86, Wm.’s Ex’crs, 272. When it comes to a choice by a register between the nominees of the different interests, as was the case in Wood’s Appeal, 5 P. E. S., 334, then doubtless great respect *365ought to be paid to the recommendations of those persons who have the most interest in the assets, upon the presumption that those who have the greatest interest to increase the estate are the most fit to advise as to the administration. 'Thus far the cases go but no further. It has never been understood (says Judge Rogers in McClellan’s Appeal), as is contended, that the widow, or next of kin, or both combined, having the greatest stake in the estate, can pass by any one of the children, or next of kin, competent and willing to take, and vest the appointment in a stranger.” . . .

All the other children of the testator, except Elam Y. G-uldin, and also Elizabeth Guldin, his widow, appealed from the decree of the Orphans’ Court granting administration to Sophia H. G-ross.

*G. F. Baer*(with whom was *I). F.*Shroeder), for appellants,

referred to act of March 15th, 1882, section 22, Pamph. L., 140, 1 Br. Purdon, 410, pl. 27 ; Wood’s Appeal, 5 P. F. Smith, 334 ; Shomo’s Appeal, 7 Id., 359; Ellmaker’s Estate, 4 Watts, 34; Bieber’s Appeal, 1 Jones, 157; Muhlenberg’s Appeal, 4 Philadelphia R., 157.

*II. A. Yundt*(with whom were *W. P. Bard*and *S. M. Meredith),*for appellee

cited Scott on Intestate Law, 27; Hassinger’s Appeal, 10 Barr, 454; Williams’s Appeal, 7 Barr, 259; McClellan’s Appeal, 4 Harris, 110; Eshleman’s Appeal, 15 P. F. Smith, 311.

Judgment was entered in the Supreme Court, March 20th, 1876.

Per Curiam :

The question in this case is governed by the principles settled in the cases of Williams’s Appeal, 7 Barr, 259, and McClellan’s Appeal, 4 Harris, 110. The register could not pass over a claimant of letters of administration who stood in the first class unless there was satisfactory evi-/ dence of his or her unfitness. Coverture alone is not a suf-" ficient disqualification. It may be a circumstance connected with other facts to determine the discretion of the register against a married claimant. There is no evidence before us to show that Mrs. Sophia Gross was an unfit person to be appointed.

Decree affirmed, with costs to be paid by the appellants, and appeal dismissed.