The opinion
Waldo, C. J.,
concurring. — The marginal note to Black- *116 borough v. Davis, 1 Salk. 38, says: “ Administration void when granted by a wrong ordinary, and voidable when granted to a wrong person.” So, if administration be granted to another, a former administration unrevoked, the latter grant is void. (Griffith v. Frazier, 8 Cranch, 9 ; Matthews v. Douthitt, 27 Ala. 273 .) Hence, while the grant of administration to Howell and McDaniel, relatively to the appellants, simply, is at most voidable only, yet, relatively to Johnson, if his letters be not revoked, it is void. The Probate Court has power to revoke administration only for just cause. (1 Williams Ex’rs, 576; Civ. Code, pp. 319, 320.) But barring section 1079, it should seem that the administrator may, with the consent of the court, resign his trust. In McGowan v. Wade, 3 Yerg. 375 , the records showed the following entiy: “ This day came Robert Wade and James Wade, and with the assent of the court, surrendered the administration,” and it was held a good .revocation. (And see Marsh v. People, 15 Ill. 286 , 287.) It hardly seems to follow necessarily in all cases that a resignation, to be valid, must be made in conformity with section 1079, requiring notice of intention to resign to be published. The powers of the Probate Court are not created by the statute. They are enlarged, limited, or varied. This section seems intended to apply where the administrator has entered on the execution of the duties of his trust, and has assumed actual fiduciary relations towards the estate. If so, the conditions implied by the statute must exist before the rule .it prescribes shall be held to govern.
Now, Johnson did nothing under his appointment ,* assumed no actual fiduciary relations to the estate. It should seem, therefore, that the power of the court to revoke his letters (he consenting) is not affected by the statute, and consequently that his letters were legally revoked. If this be so, the appointment of Howell and McDaniel is not void, and the only question is whether it be voidable. When the statute provides that the person specified in subdivision 1 of section 1058 shall be deemed to have renounced their right to the administration unless they apply therefor within the thirty days, I take it that the provision should be construed rather as a rule of evidence than as a *117 positive rule of law, and that the court may appoint any of the persons specified in said subdivision 1, after the thirty days, in preference to those specified in the subdivision following; that such persons do not become unqualified persons after the thirty days. Under this view Margaret Howell was not unqualified, and the appointment only became irregular because McDaniel was joined with her. Thus, in Brown v. Wood, Aleyn, 36, cited 1 Williams Ex5rs, 580, administration granted to a sister next of kin, and to her husband, was irregular because, “if she should die before him, he should continue administrator against the meaning of the statute.55 But in this case, no application having been made for the revocation of the letters until long after the time when the court had full power to appoint McDaniel, the irregularity has been waived; and the appellants cannot now be heard to question the appointment. “ Parties are not required to insist upon every privilege which is given or right which is secured to them. It is a general rule that at their pleasure all irregularities and defects may be waived.55 (Clark v. Montague, 1 Gray, 448 , 449.)
It would follow that Howell and McDaniel are now administrators of right.
Lord, J., did not sit in this case.