
    Wilson vs. Hoss.
    1. Letters of administration improvidently granted to a person not entitled thereto, may be recalled by the county court upon the application of the next of kin, and citation of such administrator. *
    2. The appearance of an administrator improvidently appointed, and the submission of the matters in dispute to the county court, is a waiver of the necessity of such citation.
    3. When the county court appoints any one administrator, such appointment is prima, facie evidence of his being entitled thereto. The allegations of the petition for cer-tiorari, are no evidence in favor of the applicant, and none other being introduced the petition should be dismissed.
    William L. Wilson died in Mississippi, and James Caruth-ers, in that State, administered on his estate. At the April session of the county court of Washington county, L andón C. Hoss obtained letters of administration upon the estate of deceased. At the May session of the said court, David J. Wilson presented a petition to the county court, praying that the letters granted to L. C. Hoss be recalled and himself appointed instead of him. This petition stated, that petitioner was the brother of deceased, who died in Mississippi possessed of a considerable personal estate, consisting of slaves and other personal property, and that he died largely indebted to petitioner. It also stated that a portion of the said slaves were in the county of Washington; that at the April term of the county court, he as. next of kin, and as largest creditor, applied for letters of administration upon the part of the- estate of deceased in this State, that his application was refused, and that said court granted the letters to L. C. Hoss, who was neither next of kin nor a creditor, and that said Hoss was willing to resign, &c. See. This petition was sworn to by petitioner.
    This petition was resisted on behalf of Caruthers, the administrator in the State of Mississippi, affcT E. Wilson the widow of the deceased. Hoss came into court and handed to the court the following statement in writing:
    “I accepted the administration of the estate of Wilson upon a mutual agreement of the parties, and am willing to resign it if it affects the interest of the same.”
    There was no proof introduced and the court dismissed the petition. The petitioner appealed to the circuit court.
    This cause came on to be heard at the June term, 1842, of the circuit court of Washington, Lucky, judge, presiding. The judgment of the county court was affirmed, and the petitioner appealed in error to the supreme court.
    
      J. A. McKinney, for petitioner.
    
      R. J. McKinney, contra.
   Gheen, J.

delivered the opinion of the court.

The records in this case shows the following state of facts. At April term, 1842, administration on the estate of Willian L. Wilson was granted to Landon C. Hoss, by the county court of Washington county. At the' May term thereafter, David J. Wilson, the plaintiff in error, presented his petition to said court, stating that he was the next of kin to the deceased, William L. Wilson; that said Hoss was not of kin to the deceased, nor a creditor of his estate, and praying that the letters of administration granted to Hoss be recalled, and that administration be granted to the petitioner.

Hoss, the administrator, came into court and stated that he had accepted the administration upon a mutual agreement between the parties, and that he was willing to resign the office if it affected their interests.

There was no evidence offered of the truth of the facts stated in the petition; and it does not appear, otherwise than by-said petition, that the plaintiff in error is next of kin of the deceased.

The county court refused the application, "and a .bill of 'exceptions embodying the above facts was sealed, and an appeal was granted to the circuit court. In the circuit court the cause came on upon the facts stated in the bill of exceptions only, and the court affirmed the judgment of the county court. From this judgment an appeal in error is prosecuted to this court.

We do not doubt but that letters of administration improvidently granted to a person not entitled thereto, may be recalled by the county court upon the application of the next of kin and citation of such administrator. In this case there was no citation, though the appearance of Hoss in court, and the submission of the matter to the court was a waiver of the necessity therefor. But the county court having granted administration, prima facie, the person to whom it was granted was entitled thereto. The court should not have removed the administrator and recalled his letters without evidence that he was not entitled to the administration, and that the applicant was. We do not think the petition of the party applying was to be regarded as evidence of the facts it contained. Its only office was to initiate the proceedings in court, and to induce the issuance of a citation. When the cause came on the facts necessary to induce the court to act should have been made appear by other proof. None having been offered, the court was right in refusing the application; of course the judgment of the circuit court was correct. Let the judgment be affirmed.  