Wheeler, J.
There can be no doubt of the right of the defendant to put in issue the authority of the plaintiff to sue as administrator ; and to bring before the Court the proceedings of the Probate Court to show the absence of a legal and valid appointment. Whether he had the right in this' case, to a certiorari, to bring before the Court the record of the appointment, for the purpose of having the judgment of the Probate Court revised and annulled, it was not necessary to determine; for the reason that the exceptions to the answer apparently intended to raise that question, do not appear to have been *623brought to the notice of the Court, and the record discloses no ruling upon them. The certiorari was granted ; and although it does not appear that a writ was issued, the record of the proceedings of the Probate Court was brought before the Court; and the parties “ submitted the cause to the adjudication of the Court upon the record and the evidence no action appearing to have been sought or taken upon the exceptions. They must therefore be deemed to have been waived. It must be taken that the Court rendred its judgment upon the whole case thus submitted for adjudication ; and decided, as well upon the validity of the action of the Probate Court in the matter of the appointment of the administrator, as upon the evidence adduced upon the trial. The appeal brings the case before this Court for revision, as it was submitted to the Court below ; and the principal, and indeed the only contested question arising upon the case thus submitted, is as to the validity of the proceedings of the Probate Court, under which the plaintiff claims to have authority to sue.
The Constitution confers on the District Court “original and appellate jurisdiction, and general control ” over inferior tribunals possessing the powers and jurisdiction of the Probate Courts, under such regulations as may be prescribed by law. (Art. 4, Sec. 15.) The law has provided two modes for revising their proceedings, appeal and certiorari; and when they are brought before the Court in either of these modes, the Court may revise their judgments, affirming or reversing them, as to the Court may seem right; and may try the case anew, and render such judgment, and make such determination respecting the matter in hand, as may accord with the law and right of the case, irrespective of the judgment which the Probate Court may have rendered.
If that Court has not rendered the right judgment, the District Court, and this Court on appeal, will proceed to render the judgment which shall appear to be right.
*624Has the Probate Court rendered the right judgment in this case? We think it has not. It is fairly deducible from the record, that there was, in fact, no notice of the application for letters of administration, as the law requires. That it seems was lost sight of in the contest respecting the administration ; and there was no notice of either application. We do not dwell to notice the evidences afforded by the record, that there was in fact no notice. We do not rest our decision alone or mainly on that circumstance ; but on the opinion that, under the particular, and very extraordinary circumstances of this case, the action of the Court, and the appointment of Haas, - were otherwise irregular and improper. Haas had no legal right to claim the appointment in preference to another. The Statute does not give preference to a creditor over any other suitable person. After the next of kin, and the principal devisee and legatee, it enjoins upon the Court the duty of appointing such person as will accept and qualify. (Hart. Dig. Art. 1118.) It appears, to say the least, doubtful whether Haas was such a person. His indecent haste to administer and possess himself of all the effects of the deceased, when he had enough in hand to secure him, and there was no occasion for haste, and when he must have known it was contrary to the wishes of the deceased, that he should administer, taken in connexion with other matters which the record discloses, on which comment is unnecessary, were quite sufficient to cause the Court to hesitate to pronounce him a fit or proper person to receive the appointment. There was no necessity to confer it upon him, when there was a fit person before the Court, adjudged to be such by the Court, ready to accept and qualify. In deciding between the two, the wishes and preference of the deceased might very well be regarded ; and Haas was probably the last person to whom he would have confided the administration of his affairs. He had confidence in the appellant; believing he would carry out his pious wish, to have conveyed to his mother the small sum, which should remain after defray*625ing the expenses of his last sickness. The latter could, and doubtless would have administered without exhausting that small sum in expenses of administration.. The Court appears to have considered that the circumstances of the case demanded the appointment of the latter, rather than the former ; and accordingly decided that he was the proper person to administer ; and appointed him; but in making the appointment, imposed upon him conditions which the Court had no authority to impose, and with which he could not comply, without a manifest violation of his duty: that of paying debts which had not been properly authenticated, and costs which had been needlessly and improperly accumulated by another. The imposition of such terms and conditions was wholly unauthorized and illegal. Having decided that Cain was the proper person to administer, it was the duty of the Court to confer upon him the appointment, with no other conditions than those prescribed by law. With those the appellant complied ; and the refusal of the Court to recognize him as administrator, because he had not done more, and more than a proper regard for his duty permitted him to do ; and proceeding to confer the appointment on Haas, under the circumstances, manifestly was neither a regular nor legal proceeding. It was such a proceeding as cannot be approved ; and as ought not to receive the sanction of the judgment of any Court before which it is brought for revision or correction. The Court was doubtless right in deciding that Cain was a proper person to receive the appointment, and in so far, the judgment ought to be affirmed ; but in other respects, the action of the Court was manifestly erroneous and unwarrantable, and ought to have been reversed, set aside and annulled. We are of opinion, therefore, that the judgment of the District Court be reversed ; and proceeding to render the judgment which the District Court ought to have rendered, it is the judgment of this Court that the appointment of the appellant in this case be affirmed, upon his complying with the" terms prescribed by law, and that the ap*626pointment of the appellee, Haas, be set aside and annulled; and that this suit be dismissed.
Ordered accordingly.