
    Eliza A. Pendleton vs. Joseph W. Pendleton.
    The statute (H. & H. 395,) gives the widow of an intestate the preference of administering upon his estate ; nor will that preference be taken away by the fact of her having once administered on the estate, and then renounced her administration; and of her claiming causes of action against the estate which were denied by the heirs.
    On appeal from the probate court of Lawrence county ; Hon. Matthew B. Cannon, judge.
    At the January term, 1845, of the court, Joseph W. Pendleton filed his petition, stating that Samuel Prestige, late administrator of Zebulon E. Pendleton, deceased, had departed this life, leaving the estate of his intestate without administration, and prayed that letters of administration de bonis non might be granted to John H. Oates and himself.
    At the same term of the court, Eliza A. Pendleton, the widow of Zebulou E. Pendleton, filed her petition, praying letters of administration to be granted to her, she being entitled to them as his widow.
    The court rendered the following decree, viz.
    “ It appearing, to the satisfaction of the court, that the said Eliza A. Pendleton has once been administratrix on said estate, and has renounced said administration; and it further appearing to the satisfaction of the court, that the said Eliza A. Pendleton has claimed causes of action against said estate, which are denied by the heirs; and it further appearing, that it is for the interest of said estate that administration thereof be forthwith granted; it is therefore ordered, adjudged and decreed by the court here, that the petition of the said Eliza A. Pendleton be disallowed, and that the petition of the said Joseph W. Pendleton be granted, and that letters of administration de bonis non be given to him and John H. Oates, on said estate, upon their entering into bond, &c.” From this order Mrs. Pendleton prayed an appeal.
    There is filed in the record a statement, under oath, signed William A. Stone and O. F. M’Carty, that on the trial of the petitions no evidence whatever was introduced before the probate court, and that the probate judge refused to sign a statement to that effect.
    The errors now assigned are, 1. That Mrs. Pendleton was entitled to the grant of letters; 2. That while a controversy was pending about the administration, the court appointed a party to that controversy administrator.
    
      W. Pi Harris, for appellant.
    Both grounds are well taken. The principles which govern the appointment of administrators de bonis non are the same as obtain in the appointment of original administrators. H. & H. Digest, 395 ; 3 Bac. Abr. 19.
    The widow had an undoubted right to the administration upon her deceased husband’s estate, and the renunciation of the first administration by her, is not a waiver of the right to apply and obtain letters at a subsequent time, when the previous administration has expired. The same rule would apply as in case of executors. Stephens’s Nisi Prius, 1832.
    It is not at all uncommon for the widow to have claims against the estate of her deceased husband, nor is it unusual for' the heirs to deny them; but certainly, the assertion of a claim, whether well or ill founded, whether denied or admitted by the heirs, would not disqualify the widow, or exclude her from the administration.
    The statute H. & H. 385, requires the court of probate, when a controversy is pending in reference to the administration of an estate, to appoint some disinterested person. In this, therefore, the court below erred.
    
      Van Winkle and Potter, on the same side.
   Mr. Justice Thacker

delivered the opinion of the court.

The appellant filed her petition in the probate court of Lawrence county, for a grant of letters of administration de bonis non of her deceased husband’s estate. At the same term of that court, Joseph W. Pendleton filed his petition, praying for a grant of letters of administration de bonis non upon the same estate to himself and one John H. Oates. The probate court decreed that letters as aforesaid should be granted to said Joseph W. Pendleton and John H. Oates; and the decree further sets forth, that it had been made to appear to the satisfaction of the court, that said Eliza had been administratrix of said estate, and had renounced her said office, and thus she had claimed causes of action against the estate, which are denied by the heirs.

The record shows what appears to be designed as a bill of exceptions, signed by counsel under the act of 1840, chap. 12; but, if so designed, it is imperfect in substantial requisites, and does not effect the purpose. But admitting the statements contained in the decree to have been proved on the hearing, and to be facts, they do not constitute good reasons for refusing the grant of letters to the widow of the deceased. Thejstatute prefers first the husband or wife of the deceased, and makes it imperative on the probate court so to decree upon due application, unless good cause be shown why such preference should not be allowed. H. & H. 395, § 36 ; Ibid. 397, § 40.

Judgment reversed, and cause remanded, with directions to disallow the petition of Joseph W. Pendleton, and to allow that of Eliza A. Pendleton.  