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.

*45As 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.