KENNOHAN v. COOKE, 1 Del. Cas. 486 (1795)

Clayton’s Notebook, 10

KENNOHAN and WIFE v. COOKE.

Orphans’ Court of Delaware, Kent County.
May, 1795.

This was an appeal from the Register of Kent County on an administration which he had committed to Robert Cooke on the estate of Michael Cooke, deceased, who left his father, John Cooke, his brother, Robert Cooke, the respondent in the appeal, his widow and two children. After his death, John, the father, by agreement with the widow of Michael Cooke took out letters of administration on his estate. John died before he had completed a settlement of Michael’s estate, leaving his son, Robert, his executor, to whom also (after agreements) the Register committed letters of administration de bonis won on the estate of Michael, on which appointment this appeal was taken to the Supreme Court. Kennohan had intermarried with the widow of Michael after the death of John Cooke, the father.

Miller, for the appellants, cited 1 Body Laws 294, 295, prescribing the order of granting administration as operating in favor of the appellants, and 11 Vin.Abr. 86, pl. 19, to show the same, and that the wife may have administration of her husband’s

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estate. So Sty. 456, to show that it is not entirely in the discretion of the ordinary to commit administration out of the order of the statute unless he be authorized by particular circumstances so to do.

PER CURIAM.

Let the decree of the Register be affirmed. (They did not assign their reasons for affirming it.)

[NOTE]
The order of administration: the Act, 1 Del. Laws 284, 285, recites that “the Registers of the several counties, having power to grant administration to the widow or next of kin to the intestate and upon their refusal to the principal creditor or creditors of the intestate as he shall think meet,” etc.

By the civil law, as in England —

1. Children
1st degree
2. Parents

3. Brother

4. Grandfathers

5. Uncles or nephews, and females of each class
Widow or/and respectively. Lastly cousins, creditors and
residuary legatee. And in defect of all to any
discreet person.

And to one or both.

Reasons for this decision then probably were: 1. The agreement between the widow and Robert. 2. After the death of his father, Robert was next of kin and so equally entitled with the widow. And, lastly, it is impolitic to grant administration to a wife on second marriage, who then ceases to be the intestate’s widow and throws the administration on one who is too often so situated in regard to the intestate’s affairs as to have a fair opportunity of embezzling without incurring the danger of detection.

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