
    Pleasant C. Muirhead vs. Catherine Muirhead et al.
    By the statute, the widow is entitled to take out letters of administration on her husband’s estate, in preference to the son of the deceased.
    M. died November 28, 1844; and at the December term, 1844, of the probate court, his son applied for, and obtained, letters of administration upon his estate ; at the January term, 1845, and within sixty days from the death of her husband, the widow of M. applied for letters of administration, and for the removal of the son : Held, that the probate court was right in removing the son and conferring the appointment upon the widow.
    The allowance or disallowance of continuances is ;in the discretion of the inferior court, and when that is exercised it will not be revised by the high court of errors and appeals.
    As a general rule, when the probate court has conferred letters of administration, it cannot remove the incumbent, unless for some defined statutory cause.
    Where the widow of the intestate had applied for letters of administration on her husband’s estate; and his son by former marriage has made a like application, an affidavit by the son for a continuance of the application on the ground of the absence of a witness who could prove that a short time previous to the widow’s marriage to the intestate, she was living with another man as husband and wife, will not constitute a legal showing for a continuance. The affidavit should also show that the individual charged to have been the first husband of the widow, was alive at the time of her intermarriage with the intestate.
    Where the widow of an intestate told his son, in conversation, that she waived her right of administering on her husband’s estate, and told him to^ake out letters, which he did; held, that these declarations not made in court, would not preclude the widow from changing her mind at any time within the period allotted by law, and asserting her right to the grant of administration to herself.
    The widow of an intestate applying to administer on her deceased husband’s estate, read the decree of a court divorcing the deceased from a former wife ; this was excepted to by the party contesting her right to the administration : Held, that if the admission of the decree were erroneous, it could not operate to the benefit or injury of either party, as her husband’s right to marry was not questioned; and it could not therefore defeat the widow’s right.
    
      On appeal, from the Choctaw circuit court; Hon. James A. Kennedy, judge.
    At the December term, 1844, of the probate court of this county, Pleasant C. Muirhead, by petition, prayed for the grant of letters of administration on the estate of Charles Muirhead, his father, who, the petition stated, had departed this life on the 28th November, A. D. 1844, intestate. At the same term of the court, the prayer of the petition was granted; and the petitioner executed bond and qualified according to law.
    At the January term, 1-845, of the court, Catherine Muirhead, the widow of the intestate, applied to the court for letters to be granted to herself and to her next friend, James A. Peeples. At the same term, Pleasant C. Muirhead, appeared and contested of record her right to the letters on the ground of the previous grant to him. The probate court ordered a citation to issue to P. C. Muirhead to appear and answer the petition at the February .term. At that term he appeared and moved for a continuance of the cause upon affidavit of the absence of a witness by whom he expected to prove, “ that a short time before the marriage of the said Catherine Muirhead with the deceased, Riley Chappell was her husband, or that they cohabited together as man and wife and represented themselves to the world as such;” and that this witness had been duly summoned, &c. The court overruled the motion, revoked the letters granted in December, and granted letters to the widow and Peeples, who forthwith gave bond and qualified.
    P. C. Muirhead moved for a new trial, which being refused he filed a bill of exceptions; from which it appears that on the hearing of her petition the widow read a decree of the circuit court of Holmes county dissolving the bands of matrimony between Charles Muirhead and a former wife; to the introduction of which, P. C. Muirhead excepted. P. C. Muir-head then offered to prove that a few days before the December term, 1844, the widow had waived her right of administration on the estate of her husband, and requested P. C. Muirhead to go forward and obtain letters of administration. The probate court refused to hear the testimony. Exceptions were signed and an appeal prayed and prosecuted by P. C. Muirhead.
    
      A. C. Baine, for appellant.
    1. This is a contest about who shall be administrator of an estate. The first probate court, after the death of the intestate, his son was appointed. At the succeeding term his alleged wife applied to have his letters revoked. The statute, 1 think, in the first place precluded her from doing so, successfully and rightly. See Rev. Cbde, 42, sec. 54. By this section it appears to me if she do not appear at the first court, after the decease of her husband, that then it may appoint any other person. In Ex parte Dililah Moore, 7 How. 665, the court settled the principle of this branch of the case, though not the point here contested.
    2. The next point is, that though the appointment had been injudicious, the court could not remove the person appointed, unless for some defined statutory cause. Lehr v. Tarball, 2 How. 905.
    3. Conceding the right to be, as the • defendant contends it is, yet it is a right that may not only tacitly be waived, as appears by the statute cited in the first point, but as all other rights, it may be expressly waived. The plaintiff offered not only to prove an express waiver, but an authority to himself to take out letters. The court refused to hear and act upon the proof. For this, if there were no other reason, the court will reverse the judgment.
    4. There was an offer to prove that defendant was not the legal wife of the intestate, and a continuance was asked to procure the witness. This was denied; and being a matter within the discretion of the court (the continuance) was probably not error. But the defendant admitted the fact as charged by the plaintiff and tried to rebut it; but we think wholly failed. To prove her divorce from the former husband she offered the decree granting it, without any of the proceedings on which it was founded. In other words she offered a part — a detached portion — of the record to prove the fact in issue. I need not. I presume, refer to authorities to show that this was error. The court, since the first of this month, (February, 1846,) has decided this to be erroneous.
    Any one of the four points we have taken in this case, is conceived to be sufficient to reverse it.
   Mr. Justice Thacker

delivered the opinion of the court.

At the December term, 1844, of the probate court of Choctaw county, the appellant filed his petition praying for letters of administration upon the estate of Charles Muirhead, deceased, intestate. This petition alleges that the deceased died on the 28th day of November, 1844, and that petitioner is his son and heir. At the January term, 1845, Catherine Muirhead, appellee, filed her petition praying for letters of administration upon the same estate for herself and James A. Peeples, her next friend. This petition alleges that the deceased died on or about the 19th day of December, 1844, and that petitioner was his widow. The appellant contested the right of the appellee to the prayer of her petition. At the February term following of the probate court, the appellant moved for a continuance of the hearing of the cause on account of the absence of a witness by whom he expected to prove that a short time previous to the marriage of the appellee and the deceased she and an individual were living as husband and wife. This motion was overruled. Upon the hearing, the appellee introduced a decree of a circuit court of the divorce of the deceased from a former wife. The appellant proved that the. appellee had, some few days before the December term of the probate court, in conversation with the appellant, waived her right to letters of administration upon the estate, and desired him to obtain the same in his own behalf. The court below revoked the letters of administration of the appellant and decreed letters to the appellee upon the estate.

The statutes of this state, H. & H. 395, sec. 35, prefer first the husband or wife in the grant of letters of administration. By this statute, the privilege of the husband or wife surviving may be lost by their failure to apply for such letters within sixty days from the death of the intestate, or at the next succeeding court after the expiration of sixty days from the death of the intestate. There seems to be some doubt, in the case at bar, concerning the precise date of the decease of Charles Muirhead; but if we presume it to have occurred at the earliest day charged in the record, to wit, on the 28th day of November, 1844, the application of his widow at the January term of the probate court following that date, was within the time prescribed by law. The objection, therefore, raised to the lateness of the widow’s application for letters of administration, is not effectual.

It is also insisted that the probate court, having made an appointment of administrator, cannot remove the incumbent unless for some defined statutory cause. This position, as a general rule, is correct, but it is unavailable where the appointment of that incumbent is shown to have been premature.

The objection, grounded upon the fact that the probate court refused the application for a continuance of the hearing, cannot operate beneficially for the appellant here. It has been repeatedly decided that the judgment upon an application for a continuance, being a matter of judicial discretion, is not a good cause of error. In this instance, moreover, the affidavit for a continuance was in point of law insufficient, in not setting out that the individual, charged to have been the husband of the appellee, was alive at the date of her marriage with the intestate, and also in some other respects, and the motion was therefore properly overruled. The attempt of the appellee, upon the hearing, to prove the divorce of the intestate from a former wife, was altogether gratuitous and unnecessary, and may be treated as surplusage. The legitimacy of her marriage with the intestate was not contested, or pretended to be, on the score of his incapacity to contract a marriage with her.

Finally, the position that the appellee waived her statutory privilege to a grant of letters in the first instance, is equally unsubstantial. This waiver does not appear to have been done in court, but merely to have been privately made to the appellant, with a request to him to assume and apply for the office. In this particular, she had a right, and, it seems, did change her mind within the time allowed her by law.

Judgment affirmed.  