#### Eber Smith *v.*H. O. Wingo.

The act of 1789, (P. L. 482,) in relation to granting' administration, applies to cases where the executors of a will are dead, or refuse to qualify, as well as to cases of intestacy.

By that act the ordinary is compelled to grant administration in the order prescribed. The grandson of a deceased testator is, in a class, preferred to mere next of kin; of these last, in a case of intestacy such as may be entitled to a distributive share, would be entitled to administration; but this provision does not apply where there is a will.

In the case of the next of kin, as a class entitled to administration, the ordinary may select one, preferring among them (as he most probably would) he who has an interest under the will.

But as against a stranger, any of the enumerated persons in the statute are entitled to preference,' and the ordinary would be bound to commit administration accordingly.

According to the case of Thompson v. Huchet, 2 Hill. 347, the ordinary, at the instance of any of the parties enumerated in the statute as entitled to administration, would be bound to revoke an administration committed to a stranger, and grant it to the applicant.

*288
      *Before O’NEALL,at Spartanburg, Spring Term,*1839.

This was an appeal from the decision of the ordinary, under the following circumstances:

The ordinary granted to the appellant, Eber Smith, administration, with the will annexed, of the goods, chattels and credits, of Obadiah Wingo, (deceased.) The appellant was a stranger in blood to the deceased, and had no interest under his will. He commenced suits for the recovery of chattels belonging to his testator. The appellee, who was of the *next*of kin to the testator, and had no interest under his will, applied to the ordinary to revoke the letters of administration, *cum testamento annexo,*granted to the appellant, which the ordinary accordingly did, *and*committed administration, *cum testamento annexo,*to the appellee. His honor the presiding judge, thought the case of Thompson v. Huchet, 2 Hill. 347, had decided the very point against the appellant, and directed the jury to find for the appellee, which they did.

The appellant now moved for a new trial on the following grounds:

1. Because administration, with the will annexed, of Obadiah Wingo, having been granted to Dr. Eber Smith, and *he*having by virtue of such administration, commenced several suits, the ordinary had no right to revoke such administration and grant it to one, who, though of kin, had no interest in the estate, unless some act ofmal-administrationhad been shown.

2. Because his honor erred in holding, that such revocation abated the suits commenced by Dr. Eber Smith, as administrator, with the will annexed.

Curia, per O’Neall, J.

The act of 1789, P. L. 482, applies to^ cases where the executors of a will are dead, or refuse to qualify, as well as tó cases of intestacy. By it, the ordinary is compelled to grant administration in the order prescribed. The appellee, as a grandson of the deceased is, in a class, preferred to mere next of kin. Of these last, in a case of intestacy, such as - may be entitled to a distributive share, would be, entitled to- administration; but *289this provision does not apply where there is a will. In the case of the next of kin, as a class entitled to administration, the ordinary might select one, preferring among them (as he most probably would) he who had an interest under the will. But as against a stranger, any of the enumerated persons in the statute are entitled to preference, and the ordinary would be bound to so commit administration. According to Thompson v. Huchet, 2 Hill. 347, he would at the instance of any of these parties, be bound to revoke administration committed to a -stranger, and grant it to the applicant. Indeed, according to that case, a stranger, to whom administration is committed, is the mere nominee of the ordinary, and he may revoke his appointment and commit it to another. In that view, I am disposed to concur. But it is sufficient for this case, that the appellee is entitled by law to the administration, in preference to the appellant — and that to fulfil the law, the ordinary did right in revoking the appellant’s administration and committing it to the appellee.

*Young,*for the motion.

The motion for a new trial is dismissed.

RiciiaRdson, Evans, Butler and Earle, Justices, concurred.