Section 2520 of the Code of 1907 fixes the order in which persons are entitled to letters of administration. There was no widow, and the appellee, Davis, sought letters under the second class as next of kin, while the appellant claims to be a creditor under the third class. Section 2522 provides that, unless the persons under the first three subdivisions of section. 2520 apply for letters within 40 days after the death of the intestate is known, the persons so entitled must be held to have relinquished their right to administration. Letters were granted to Davis more than 15 days after the death of the intestate, and, if improvidently granted, this appellant cannot complain or have *269the same revoked, for the reason that he waived any right to administer by failing to apply for letters within 40 days, and thereby obtain a revocation of the appointment of the said Davis, and the pendency of the other administration, improvidently granted before the expiration of 40 days, does not excuse his failure, nor relieve him from its consequences. — Curtis v. Burt, 34 Ala. 729; Curtis v. Williams, 53 Ala. 570; Wheat v. Fuller, 82 Ala. 572, 2 South. 628; Davis v. Swearingen, 56 Ala. 31; Barclift v. Treece, 77 Ala. 528. The time having expired, before this proceeding was- instituted, for the appointment of any one having a better right to letters of administration than this appellee, whether he was next of kin to the intestate or not, all intendments must be indulged in the fitness of the appointee; but, if an unfit person to administer, the attack should be by a proceeding to remove him, and not to revoke the letters on an attack made by a person who has waived all right of preference he may have had to said letters of administration.
The issuance of the letters to Davis- was not void; for, if he did hot come under the second subdivision of section 2520, he did come within subdivision 4, and the probate judge had the right and jurisdiction to appoint him; but, having done so before the expiration of 40 days from the death of the intestate, the appointment was voidable upon' the seasonable application of those having a better right under the statute, but who waived their preference by failing to apply and take steps to revoke the appointment of the appellee within 40 days after the death of the intestate.
The judgment of the probate court is affirmed.
Affirmed.
■ D'owdhdl/ C.' J., and Sayre¡' and Somerviele, JJ., concur.