
    M’Candlish v. Hopkins & Hodgson.
    [December, 1814.]
    Application for Administration upon Estate — Creditors. — A creditor, since the act of 1792, has no preference. over any other person, in an application for administration upon an intestate’s estate ; but every case must depend upon its own cirenm-stances.
    Power of Attorney to Execute Administration Bond.— Under a power of attorney, authorizing a person to execute an administration bond for the person giving the power, the attorney may be allowed to execute the bond accordingly.
    In an appeal, by M’Candlish, from a judgment of the superior court of law at Williams-burg, the case appeared to be, That, in the year 1814, Buey L. Paradise died intestate. That, within the last seven years, she had two grand children (alien friends) living beyond sea, and it is not suggested that they are dead. That Mrs. Hopkins and Mrs. Hodg-son, being the daughters of a deceased sister, are her nieces ; the first of whom resides in Virginia, and the latter in Alexandria. That, in September last, Hopkins and Hodg-son, in right of their wives, applied for administration upon the estate of the intestate ; which was opposed by M’Candlish, who was a creditor of ihe decedent, and, in that character, applied for the administration also. That the judge, being of opinion, “ that, granting the fact that the grand children are now alive and out of the country, the *court had no discretion; and that Hopkins and Hodgson were entitled to the administration as matter of right under the statute,” rejected the application of M’Candlish, and appointed Hopkins and Hodgson administrators; who offered, as their securities, Roster and Marshall, of the city of Richmond, and Lee; but, they not being in court, powers of attorney, from them, to Basset, or Brown, to execute the bond, were produced. That the powers of I attorney were not proved in court; but appeared, by the certificate of the mayor of Richmond, to have been acknowledged, as to Marshall and Foster, and proved by the witness as to Lee, before him, the said mayor. That M’Candlish “prayed the court to reject the powers of attorney, and not permit the bond to be executed by the attorney, as they would be illegal and void;” but that the court overruled the objection, and allowed the attorney to execute the bond. Whereupon, M’Candlish appealed to this court.
    On the 14th of November, 1814, the court of appeals, “neither approving nor disapproving the reason of the court below for granting administration to the appellees,” affirmed the judgment.
    Call, for the appellant,
    moved the court to re-hear the cause, 1. Because the appellees had not, upon the ground of kindred, any preference under the statute ; which confines the grant of administration first to the dis-tributees, and then to creditors or other persons, as the court ma3 think fit: Upon which words the interpretation had always been in favour of the creditors; and that construction was agreeable to the practice in England; where, in cases of discretion, the creditor was always preferred. Wood’s Inst. 338. Nor was this exposition affected by the act of 1748, because that statute was entirely repealed by the acts of 1785 and 1792, and therefore was not within the rule of pari materia, which only takes place in cases of co-existent statutes. 2. Because, if the kindred were to be preferred next after the distributees, the husbands were, still, not entitled *to the administration upon that ground, without the express assent of their wives appearing upon record; for the right was personal to the wives, and the husbands had no pretensions to it. Allen, 36. 3. Because the powers of attorney, not having been proved in court, were not properly authenticated; for, upon non est factum pleaded, the mayor’s certificate would not be evidence.
    Wickham, contra.
    The act of 1792 did not give M’Candlish a preference upon the words, and he has not entitled himself to it upon any other ground. For he has good security for his debt, and it is plain that he only wishes to keep possession of the estate. Whatever may be the rule in England, the practice, in this country, is to grant administration to the husband in right of his wife. The bill of exceptions does not call the authenticity of the powers of attorney in question, but merely denies the authority of the attorney in fact to execute the administration bond.
   PER CUR.

The act of assembly gives the court power, in case none of the distributees apply for administration, to grant it to a creditor, or to any other person the court shall, in their discretion, think fit. So that, upon the words of the statute, a creditor has no preference over any other person ; but every case must depend upon its own circumstances. The appellant, therefore, has no right to a preference, unless the circumstances of his case require it: But he has shewn nothing to differ it from cases in general; and consequently has no claim to priority. Looking, therefore, to the discretion of the court below, we cannot say it has been improperly exercised in that respect. The other point is equally clear. For the bill of exceptions does not make it a question, whether the powers of attornej' were duly executed? but whether the attorney could give bond for the principal? The court below thought they could; and this court concurs in that opinion. The motion to rehear is therefore denied.  