Two questions are presented by the appeal:

(1) Does the provision in section 12 of the Revisal, giving discretionary power to the clerk to appoint some suitable person administrator, when no person entitled to administer has made application for letters within six months from the death of the decedent, control in an application for the appointment of an administrator de bonis non cum testamento annexa, made more than six months after the death of the testator and within six months of the death of the prior administrator or executor ? '.

(2) Does the nomination of a stranger for appointment by two or more of the next of kin, entitled to administer, affect the right of another of the next of kin of equal degree who did not join in the nomination?

The statute, which confers jurisdiction on the clerk to appoint some suitable person administrator when no one entitled to administer has made application for letters within six months from the death of the decedent, is found in the second subdivision of chapter 1 of the Revisal, which is devoted to administration.

This subdivision clearly recognizes the distinction between letters of administration, which issue in case of intestacy, and letters testamentary, issuing when there is a will.

In section three it is provided that “Letters of administration, in case of intestacy, shall be granted to the persons entitled thereto and applying for the same in the following order,” and then follows the enumeration of the classes.

Section 5. “The clerk shall not issue letters of administration or letters testalmentary to any person who, at the time of appearing to qualify,” is disqualified, and then the disqualifications are stated. Section 6 provides that where an executor or any person having a prior right to administer is under the disqualification of nonage or is tern- *340 porarily absent from the State, “such person is entitled to six months, after coming of age or after bis return to the State, in which to make application for letters testamentary or letters of administration!’ Section 10 makes provision for a renunciation by the executor and section 11 for a renunciation by those having a prior right to administer. (Italics ours.)

It is thus seen that throughout the subdivision the line is clearly marked between “letters of administration” and “letters testamentary” and between the executor and one entitled to administer, and this distinction is retained in sections 12 and 13,' the first being entitled “when person entitled deemed to have renounced” and the second “when executor deemed to have renounced.” Section 12 provides, “If any person entitled to letters of administration fails or refuses,” etc. “If no person entitled to administer shall apply for letters of administration,” and was intended to apply to cases of intestacy and not to those where there is a will. A consideration of the next subdivision in the chapter entitled “Will Annexed” strengthens this position because provision is made in section 14 for the appointment of an administrator with the will annexed when there is no executor qualified to act “in the order prescribed in this chapter” and not within the time.

It may be, by analogy, section 12 is broad enough to cover cases where no executor is named in the will, or when one named refuses to qualify, but primarily its purpose is to deal with cases of intestacy, and for the reason that in the vast majority of cases executors are named in wills and qualify, and comparatively few are removed by death or otherwise within six months from the death of the testator, and if it should be held that the limitation of six months applied in such cases it would be a denial of the right to administer to those placed by law in the preferred classes.

We cannot think such.was the intent of the General Assembly, and are of opinion that the application for letters having been made, within six months from the death of the first administrator with the will annexed, the parties should have their rights determined . as regulated by section 3, which prescribes the order in which persons are entitled to administer, without reference to the limitation of six months in section 12.

Who then has the right to administer under the statute? Three of the four in the preferred class, representing a bequest of $100, have renounced and nominated S. P. Williams, a stranger, and the fourth of the class, J. Lacy Williams, representing practically one-fourth of the estate, has made application for appointment and has been appointed, and the controversy is therefore between the nominee of the *341 majority of the next of kin, who have very little pecuniary interest, and one of-the next of kin owning a large part of the estate.

The right to nominate an administrator is recognized in several decisions in our Court, collected and discussed in Boynton v. Heartt, 158 N. C., 488, but in none of th'em has the nomination been approved or sustained when a stranger was nominated by a majority as against one in the preferred class.

The statute gives each of the next of kin in the same class the same right to administer; the interests are frequently antagonistic, as in this case, there may be no community of interest, and if numbers are permitted to control, three of the next of kin, representing a pecuniary interest of one dollar each, could name an administrator as against two entitled to one or ten thousand each.

We see no reason for permitting a majority to deprive another of his right, and the statute, Rev., sec. 11, seems'to contemplate that this can only be done by his own act, by renunciation.

In Pennsylvania the register had the power of appointment, and in Stewart’s Estate, 189 Pa. St., 72, the Court said of the question now before us: “The discretion vested in the register is limited to a selection from each class entitled in its order, and neither he nor the parties renouncing can pass by one of the children competent to administer and vest the appointment in a stranger. Williams’ App., 7 Pa., 259; McClellan’s App., 16 Pa., 110.”

Again, in Justice v. Wilkins (Ill.), 95 N. E., 1026: “Any one of the nephews and nieces in this State, and otherwise qualified, was entitled to be appointed as administrator, and the court might have granted letters to any one or more of them. Could he legally appoint a stranger to the class, nominated by one of these nephews or. nieces, unless the. others who were equally entitled to administer waived their rights ? We think not. In our judgment the statute is mandatory to aj>point one or more of the next of kin residing in the State who were otherwise qualified, unless they waived their rights. O'Rear v. Crum, 135 Ill., 394, 25 N. E. 1097; Judd v. Ross, 146 Ill., 40, 34 N. E. 631. When any one heir of the class waives the right and nominates another, the one so nominated is not to stand in the place of the others, with equal rights to administer as against the other heirs of the class, unless the person nominating is the only heir of that class. If all of those who appear of the class entitled to administer waive that- right and another person is appointed at his, her, or their request, if one of the others of the class who are equally entitled to administer appears ‘within, sixty days from the death of the intestate’ and insists upon his right to administer in person, and if he is a competent person, we are of the opinion that it would be the duty of the court to appoint him; provided, however, in *342 turning over the estate the court may make all necessary orders for its proper protection and for the compensation of the person theretofore appointed.”

“Code Civ. Proc., 1365, in fixing the order in which certain classes of persons are entitled to administer a decedent’s estate, provides (subdivision 2) that in the absence of a surviving husband or wife, children shall be appointed. Section 1379 provides that ‘administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court’: Held, that where three daughters survived, and one of them applied for administration, she should be appointed, though a competent person nominated by the other two daughters also applied, the court not having any discretion in such case.” In re Meyers Es. (Cal.), 100 Pac., 712.

The same principle is declared in Cramer v. Sharp, 49 N. J. Eq., 558.

We are therefore of opinion his Honor committed no error in holding that J. Lacy Williams is entitled to the appointment as administrator d. b. n. o. t. a. in preference to S. P. Williams, a stranger.

No error.