Perez Cobb et al. Appellants, versus Horatio G Newcomb, 19 Pick. 336

Shaw C. J. The right of administration may often be a valuable one, and is now to some extent fixed by law and does not depend upon the mere judicial discretion of the judge. Revised Stat. c. 64, § 4. The right is first in the widow and next of kin, either or both, as the judge may order. In the present case the widow renounced her claim ; but this did not give her the right to nominate another person, to the exclusion of the next of kin. If they live within the county, they are to be cited. In the present instance the next of kin were two brothers, who did not live within the county.

The statute further provides, that if the persons so entitled, that is, the next of kin, are incompetent or evidently unsuitable, or if they neg lect, without any sufficient cause, for thirty days after the death of the intestate, to take administration, the judge of probate shall commit it to one of the principal creditors, if there be any competent and willing to undertake the trust ; and if there be no such creditor, then to such person as he may think fit.

The Court are of opinion, that the judge of probate could not pass over the next of kin and appoint a stranger until the expiration of the thirty days, which seem to be allowed to the next of kin to apply.

If it should be held that the judge of probate may appoint another within thirty days, in case the next of kin are, in his judgment, incompetent or evidently unsuitable for the discharge of the trust; we think the answer is, that in fact no such adjudication took place in the present case, at least the decree does not purport to be put upon that ground, and further, he could not thus adjudicate upon their rights, unless they were parties before him, by applying for administration, or unless cited in to .show cause why another should not be appointed in their place.

The Court are therefore of opinion, that the appointment of a stranger within thirty days, without citation or notice to the next of kin, was "irregular^ and that the decree appointing the respondent was erroneous, and it is hereby reversed.