
    *Haxall v. Lee.
    June, 1830.
    Administrators — Appointment—Persons Preferred. — A person dies intestate in 1825; and in 1830, a distrib-utee and a creditor come, at the same time, to ask administration: Held, the court has no discretion to choose between them, but must prefer the distributee.
    Thomas Bennett late of Petersburg, died there, intestate, in the year 182S. No application for administration of his estate, was made by any person, till Eebruary 1830, when Haxall, a creditor of the intestate, applied to the hustings court of Petersburg for the administration; and, .thereupon, Lee, the husband of a daughter and distributee of the intestate, and in favour of whom (and of him only) the intestate’s widow had relinquished her right to the administration, appeared and opposed the grant thereof to Haxall, and prayed that it might be granted to him. It appeared, that both parties were respectable and responsible persons. The hustings court gave the administration to Haxall. Lee appealed to the circuit court, which reversed the order, and gave the administration to Lee. And then Haxall appealed to this court.
    M’Earland for the appellant; Allison for the appellee.
    The provisions of the stat-
    ute concerning wills, intestacy and distributions, 1 Rev. Code, ch. 104, l 32, 3, 4, pp. 382, 3, and the cases of Cutchin v. Wilkinson, 1 Call, 1; Hendren v. Colgin, 4 Munf. 231; Bohn v. Sheppard, Id. 403, were cited.
    
      
      Administrators — Appointment—Persons Preferred.— The principal case was cited in Bridgeman v. Bridgeman, 30 W. Va. 219, 3 S. E. Rep. 583. See further, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   PER CURIAM.

The statute gives the right of administration, first, to the husband or wife, and then to . those next entitled to distribution, or such of the distributees as the court shall most approve: and, although it authorises the court, in case no such person apply for the administration within thirty days, to grant it to a creditor or creditors who shall apply for the same, or any other fit person, in its discretion; yet it provides, that if, after the grant of the administration *to a creditor, the wife or other distributee shall apply for it, the same shall be granted in like manner as if the former had not been obtained. If, therefore, in the present case, administration had been granted to Haxall, and Lee had come, at any time afterwards, to demand it, the court must have revoked the grant thereof to Haxall, and given it to Lee. But the creditor and distributee came both together: and both were trust-worthy. The court had no discretion to withhold the administration from the distributee, and give it to the creditor. The order of the circuit court is affirmed.  