#### GEORGE W. SUTTLE and wife v. FIELDING TURNER.

Wherever a deceased person has left a will and omitted to appoint an executor, or the person appointed has refused to qualify, the court of ordinary has a discretionary power to appoint any proper person administrator with the will annexed.

Petition to revoke letters of administration, heard before Dick, J., at the Spring Term, 1861, of Eutherford Superi- or Court.

*404At November Term, 1859, of Nutherford County Court, the will of Martha ITaye was duly proved, and the executor, therein named, having renounced, the defendant, Fielding Turner, was appointed administrator with the will annexed. In the May following, the plaintiffs, George W. Suttle and his wife, Mary, petitioned the County Court of Nutherford, stating the probate of the will and the appointment of defendant, and .that the renunciation of the executor was irregular and void, praying that said Turner be removed, and the persons appointed by the will be qualified, and in case they refuse to qualify, that some proper person be appointed to the office of administrator with the will annexed. The petition sets out that the plaintiff, Mary Suttle, “ is the only heir-at-law of Martha Haye, deceased, and thereby 'entitled to administer on her estate.”

The answer of the defendant, Turner, insists that the renunciation of the executors was duly and formally entered, and that the Court cannot enquire into the validity of their renunciation, unless they were made parties. On the hearing of this petition, the County Court revoked the letters of administration granted to the defendant, ordered a reprobate of the will, and at the instance of the plaintiffs, appointed one Wash-burn administrator, with the will annexed. The County Court having refused the defendant an appeal, the case was brought up by certiorari to the Superior Court, and there, the judgment of the County Court was affirmed — the letters of administration granted to the defendant, were revoked and a procedendo ordered to the County Court, from which judgment, the defendant appealed to this Court.

Logan, for the plaintiffs.

Gaither, for the defendant.

Battle, J.

This is a petition filed in the County Court of Nutherford, for the purpose of having letters of administration awm testamento annexo, on the estate of Martha Ilaye, which had been previously granted to the defendant by that *405Court, revoked, and, thereupon, that the executors named in the will, or some of them, should qualify thereto, or in the event of their renunciation, that letters of administration should be granted to the petitioners or to some discreet person. Among the allegations, upon which the petition is sought to be sustained, is the main one, that when the letters of administration were granted to the defendant, the executors had not legally renounced their right to the office conferred upon them by the will, and that, therefore, the grant was improvidently made, and ought to be revoked. In the petition, the feme petitioner is alleged to be “the only hoir-atlaw” of the testatrix, and on that ground, the light of administration is claimed for her.

The answer of the defendant alleges, that the renunciation of the persons named as executors, was properly made and entered of record by the Court, before the letters of administration were granted to him, and he insists that his letters, even if they were erroneously granted, cannot be revoked, except in a proceeding by the executors themselves for the purpose, or at least, in one to which they shall be made parties.

We are clearly of opinion that this objection is fatal to the ' petition.

Assuming that by the terms, “ the only-heir-at-law,” .the feme petitioner meant to allege that she was the only next of kin of the testatrix, that does not give her any right to the administration cum testamento annexo. The right of any person to the grant of administration upon the estate of a decedent, depends upon the statute on that subject, which applies only to the cases of persons dying intestate. Whenever the deceased has left a will, the courts of ordinary have a discretionary power, in the event of there being no executor named in the will, or if thdse nominated die, or refuse to qualify, to appoint any proper person to administer with the will annexed. In the exercise of this discretion, they usually appoint the residuary legatee, or some other person interested in the estate, their object being thus to secure, on behalf of a faith*406ful administration of the office, the interest of the appointee. In the present case, the feme petitioner does- not appear to have even this recommendation of interest in her favor, for it is not stated, in the petition, that she took anything whatever under the will of the testatrix. The petitioners are, therefore, to be regarded as strangers, intermeddling in matters in which they have no concern, and, as such, they cannot bo permitted to interpose in behalf of the executors, by a proceeding to which the latter are not parties, and in which they cannot be heard.

The judgment of the Superior Court must be reversed, and the petition dismissed with costs.

Per Curiam,

Judgment reversed.