The opinion of the court was delivered by
Barrett, J.
It is conceded in the argument that the appellants are so interested in the estate as to be entitled to take an appeal, provided the case is one in which an appeal can be taken *125at all under the provisions of the statute. In c. 48, s. 30, Gen. Sts., it is enacted that “any person'interested in any order, sentence, decree, or denial of any Probate Court, who considers himself injured thereby, may appeal therefrom,” &c. It is agreed that the appointment of one person an administrator, and the refusal to appoint another, on application of a party interested in the estate as claimant, whether widow, heir, or creditor, is an act of the court falling within the meaning and operation of the terms, “any order, sentence, decree, or denial of any Probate Court.” If the matter was to rest here, the result would seem to be unquestionable, viz: that the appellants were entitled to an appeal in this case. But it seems to be assumed in the argument, that the right to an appeal in such case depends on the right by preference given in s. 3, c. 51, Gen. Sts.; and as this is the appointment of an administrator de bonis non, where the widow adminis-tratrix has lost her authority by a second marriage, and such right of precedence is not given in reference to such an appointment, she therefore has no ground of right; or, in other words, she has no such status in the case as entitles her to interfere in the matter of such appointment. If this matter of precedence under the statute, was conclusive as to the question who should be administrator, and when the record showed conclusively that the appellants were thereby exduded from such right by precedence, it might plausibly, perhaps properly, be held that they could not take and hold an appeal. But even under the provisions as to right by precedence, such precedence is subjected to the condition of being “ suitable and competent;” and that condition has to be adjudicated by a Probate Court. If, on the original application of the widow of said Isaac, her appointment had been denied on the score of not being “ suitable and competent,” and another person had been appointed administrator, it is plain and not questioned, that an appeal would have laid from such action of the Probate Court, and that, too, on the very ground and question of suitableness and competency. Under s. 14, c. 51, though this matter of precedence is not accorded to particular parties, still, the matter of suitablenesss of the person to be appointed administrator de bonis non, is to be adjudicated and made *126tbe ground of the appointment, as much as in the case of the original appointment of an administrator. It would seem difficult to discover in the nature of the subject, any ground or reason for allowing an appeal in the one case and denying it in the other. Sec. 5, c. 51, Gen. Sts., providing for the appointment without appeal, of a special administrator, “ when there shall be delay in granting letters testamentary or letters of administration, occasioned by an appeal from the allowance or disallowance of a will, or from any other cause,” is as applicable and operative in case of an appeal in such a case as the present, as in the case of an original appointment of an administrator.
Though counsel did not discuss, still the question is suggested in the brief, whether an appeal would be lawful when the order involved only a question of discretion exercised upon evidence and facts. On this it may be remarked that the statute does not make or indicate any distinction or difference as to right of appeal on such ground. And further, that an appeal from a lower to a -higher court, carries up the whole case for a retrial upon all matters and features entering into and affecting the final decision and order to be made therein. It differs from a bill of exceptions carrying a case from the County to the Supreme Court. That carries for revision only matters of law decided upon facts found in the court below. An appeal from a judgment in a justice’s court, and also from a decree of a court of chancery, illustrates the difference between that and exceptions to the judgment of the County Court. This is but repeating, for substance, what is fully and clearly discussed and established in Adams v. Adams, 21 Vt. 162" court="Vt." date_filed="1849-01-15" href="https://app.midpage.ai/document/adams-v-adams-6574038?utm_source=webapp" opinion_id="6574038">21 Vt. 162. See also Lawrence v. Englesby, 24 Vt. 42" court="Vt." date_filed="1851-12-15" href="https://app.midpage.ai/document/lawrence-v-englesby-6574689?utm_source=webapp" opinion_id="6574689">24 Vt. 42, and other cases ad lib.
The appeal in this case was lawfully taken.
Judgment reversed, and cause remanded, to be proceeded with in due course.