
    Tho. Wright’s Distributees, vs. Robert Wright.
    In Error.
    An appeal will lie to the circuit court, from the judgment of a county court refusing to appoint A administrator, &c.,where his appointment is contested.
    If one of the distributees of an intestate apply for administration and the application is opposed by the widow, and other of the distributees, but neither of the latter apply to administer, the court ought to appoint the applicant.
    And if either of the other-s should apply, it is within .the sound discretion of the court to make a selection.
    Agreements between distributees, to divide the intestate’s property, without administering, ought not to-be encouraged.
    This was a motion made by Robert Wright, one of the heirs and distributees of Thomas Wright, deceased, at the April sessions, 1824, of Hickman county court, to he appointed administrator, &c., of Thomas Wright, deceased, who died intestate, in the spring of 1820. The widow, and other heirs and distributees of the deceased, were admitted to defend. The county court overruled the motion, and refused to appoint him administrator, &c.; from which judgment he appealed to the circuit court.
    At the September term, 1824, of the circuit court of Hickman county, the matter was tried. The appellees there proved, that shortly after the death of Thomas Wright, an agreement was entered into, by nearly all the heirs of said Thomas, (of whom Robert was one,) by which agreement, the real and personal property of the deceased, wag j-Q }3e amicably distributed among those entitled, without administering upon the estate; and that it had been distributed according to the agreement. Robert Wright, on }jjs parj;; proved, that he entered into said agreement, upon the express condition, that he was to get a title to a certain tract of land, on which he then lived, as his part of the estate; that a deed had heen made to him for said land: in consideration of which he relinquished and released, to the rest of the- heirs of said Wright, deceased, all his right, title, &c., to any other part of the estate of said Thomas. He also proved, that after - the agreement, and before this application was made, a bill was filed by the other heirs, against him; the object of which was, in part, to set aside said conveyance and agreement. It was also proved, that there were no debts of any consequence against said estate. The circuit judge appointed Robert administrator, •and ordered letters of administration to issue, on his giving bond, in the penal sum of 5000 dollars, with two good and sufficient securities, to be hound in the sum of 2500 dollars each; from which judgment an appeal, in the nature of a writ of error, is prosecuted to this court.
    
      Washington for the appellants.
   Crabb, J.

delivered the opinion of the court. In this case it is objected: first, that an appeal did not lie from the county to the circuit court. We think the appeal in this case is clearly given by- the act of 1794, ch. 1, sec. 48; if not within the letter, it is within the spirit of that act.

It is objected, secondly, that the court erred, in granting-letters of administration to the applicant. We can perceive no error in this respect. He was one of the next of kin; the widow, and most of the other heirs, were before the court, and not one of them applied to administer; nor had any of them applied, in the four years that intervened, between the intestate’s death and the original application. And even if they had applied, it was within the sound discretion of the court to make a selection.

As to the agreement to divide the property among them, without administering, we think such agreements do not •deserve encouragement. They are seldom beneficial to the individuals concerned in them, produce lawsuits, and are •often made the means of defrauding creditors. Besides, it does not. appear, that there was any express agreement on the part of the appellee, not to administer, or that he violated any engagement by making the application. His administering cannot operate as an injury to any one, as security will have to be given by him, for the faithful discharge of his duties as administrator.

The court would not reverse the decision of a circuit judge in such a case, except it appeared to be clearly erroneous. In this instance, they are entirely satisfied with his order or judgment; it is accordingly affirmed, with directions to the circuit court to issue letters of administration to the appellee, on his giving the bond and security required by the order of that court.

Judgment affirmed.  