#### James Ritchie v. Duncan McAuslin.

Administration granted when tlie next of kin are out of the country should be *durante absentia :*if otherwise it is er, oneous. The next of kin in another country may appoint a person to take the administration here. The court should not grant li tters to a person not designated in the act, before the persons designated have r. fused. The Superior Court will repeal theletters when improperly granted., and make an *order*for the County Court to grant them to the proper person. *Qusre*whether it should not have been a *mandamus.*

Petition, to rescind letters of administration, granted by the County Court of Cumberland to the Defendant, of the estate and effects of *Jhiley McNaughton,*deceased, in July Term, 1792. The next of kin beyond sea, since that time, have appointed the petitioner to apply for the administration as their agent and trustee. 'He exhibited this petition \o the county court, who refused to-repeal the former letters; and thereupon the petitioner appeal- ' ed to this court. He had a similar appointment also "from *252
      *Willie Ewin Me Clay,*trustee of the sequestrated estate of the surviving partners of *Auley McNaughton*and *Co.*in Scotland.

*Per*curiam,

Administration when granted, if the next of kin are infants, should be granted *durante minoritale ;*if beyond sea, or out of the country, *durante absentia;*and if otherwise granted, it is erroneous. Where' the next of kin reside in a foreign country, and cannot personally attend to take the administration themselves, they may appoint a pri son in whom they have confidence to take it for them ; and the court ought to grant the administration to their appointee. The court have not executed the power the law gives them, when they have granred letters to a person not designated in that act, before the persons designated have refused : but only where they have granted letters to the proper persons : when they haw- granted liters to improper persons, they may repeal them, and ought to do so. at the application of the persons properly entitled. 1 *Cro.*469. *Rep.*18, — The consequence is, that the letters in the present case, having been improperly granted to the Defendant, to the prejudice of the next of kin in Europe, should be repealed, and granted to their appointee. *H. Bl. Rep.*152.—This was ordered accordingly, and an order of this court was made for the County court to grant letters accordingly.

Quœre, if it should not have been a *mandamus*— for if they refuse to comply with this order, how are they tobe brought under the penalty of a contempt committed towards this court.

The court further said, that they did not regard the appointment of the trustee of the sequestrated estate of the survivors, because the survivors were entitled to all the joint stock in trade, until the net balance was ascertained ; and as to that, the power of the administrator com-after the business of the survivors was finished *;*and besides the administration would extend to suclmf the effect-, of the deceased, as were not apart of the joint stock,’ and the survivors could have nothing to do with that, and the trustee stands only in their place.

*Note.*— Vide *Carthey*v. *Webb,*1 *Car. Law. Rep. 247. S. C. 2 Murph.*268.