#### DAVID H. STOKER et ux. vs. DAVID KENDALL.

The right of the next of kin to letters of administration is not absolute and exclusive, so as to give them a legal claim to demand that the appointment of a third person as administrator should be vacated, to make room for their application.

If the next of kin do not apply for letters of administration, or fail to give-bond and security as the law requires, and the County Court thereupon gives the appointment to some other person, the next of kin have no further right, and the Court has no power to revoke or declare void such appointment.

This was a contest for letters of administration on the estate of Eliza Coleman, dec’d, commenced in the County Court of Stanly, and the following is substantially the case, as presented by the record:—

David Kendall, the defendant, gave notice to the plaintiff to come forward and apply for administration on the estate of said intestate, and that he would make application at November Term, 1849, for the same as a creditor or claimant against the said estate, and as assignee (of R. P. Coleman, the brother, and Nancy R., sister of the intestate,) of the right of administration. At November Sessions, 1849, the plaintiff appeared and applied for letters of administration, which wére granted to him by the Court, on his giving bond and security according to law. But he failed to give the bond required ; and at February Sessions following, letters of administration were granted to the defendant, who entered into bond as required by the Court, was qualified, and entered upon the administration of the estate of the said intestate. At the May Sessions of said County Court, the plaintiff and his wife caused notice to issue to defendant to show cause why the letters of administration theretofore issued to him should not be revoked, and letters granted to them as next of kin of the intestate ; and at August Term, 1850, the parties appeared, when the said County Court of Stanly refused to vacate the letters of administration to the defendant, and the plaintiffs appealed to the Superior Court.

And the matter of the plaintiffs’ application coming on to be argued before his Honor Judge Dick, at the last Spring Term of the Superior Court, he gave judgment vacating the letters of administration granted to the defendant, and directed a procedendo to issue to the County Court, to proceed in- appointing the plain*243tiffs as administrators of the said estate j from which judgment the defendant appealed.

Strange, for the appellant: — •

]. The next of kin may appoint a person to take out letters of administration in their stead. (Ritchie v. Me Austin, 1 Hay. -220— Smith v. Munroe, 1 Ire. 343 — Wms. on Exrs. 283.)

2. As to rights of creditors and persons having the beneficial interest, vide Wms. on Exrs. 287, 290.

3. But Stoker and wife had forfeited their right, by not complying with the terms of the Act of Assembly. (Rev. Stat. ch. 46, sec. 2.)

4. As to the cases in which a Court may revoke letters. (Wms. on Exrs. 377, 391.)

Dargqn, contra.

Pearson, J.

The right of the next of kin to be appointed administrator is not absolute and exclusive, so as to give such next of kin a legal claim to - demand that the appointment of a third person should be vacated, to make room for their application. If the next of kin do not apply for the appointment, or fail (as in our case) to give‘bond and security as the law requires, and the County Court thereupon gives the appointment to some other person, the next of kin have no further right, and the Court has no power to revoke or declare void the appointment previously made.

The object in appointing an administrator, is to have the estate of the intestate taken care of. Since the statute of distributions, it in fact makes but little difference who is appointed administrator, so that he is a fit person, and gives the bond required by law. Prior to that statute, as the administrator had a right to the surplus, after the debts were paid, it was a matter of very considerable consequence to obtain letters of administration; and there were frequently contests about the right. But now it can only affect the right of the creditor to retain ; and when the next of kin are guilty of laches as to the time of making the application or otherwise, the County Court may exercise a sound discretion in the premises. The judgment of the Superior Court is reversed. This opinion will be certified.

Pee CüRiam. Judgment reversed.