By the court:

The reasons given by the district judge, to set aside the appointment of James Walsh, as administrator of Charles O'Keefe and of his second wife, Ellen Walsh, are not satisfactory to us.

Rogers, as tutor of a son of O’Keefe by a former marriage, had no claim whatever to the administration of the succession of Ellen Walsh, at the time of the appointment, she having left a child, the issue of her marriage with O’Keefe ; the subsequent death of that child, cannot render the administration of Walsh illegal.

From the very circumstance that Walsh applied for the administration, the court must have presumed that there were heirs present; they are presumed to have had notice of the application, and if they did not see fit or were not at the time in a situation to oppose it, the appointment made, according to the forms of law, should be sustained. If the minor has been injured by the acts of the administrator, he has his recourse against him, and his surety on then-bond ; but we see no ground for disturbing the sale of the house and lot made to Mrs. Walker.

It is ordered, that the judgment in these consolidated cases be reversed. It is further ordered, that in the case of David J. Rogers, tutor, v. Mrs. C. L. C. Walker et al., there be judgment in favor of the defendants, with costs in both courts.

It is further ordered, that in the case of the succession of Charles O’Keefe and wife, the account of administration, filed by James Walsh, be reinstated, and the case remanded for further proceedings on said account, according to law. The costs of the appeal to be paid by the succession.