The referees reported that there was due from the estate of Bullceley to the estate of ¡S'. Dana, $8 and 22 cents, which appeared by their report to be thus made out, viz.:—

They charged the accountant with Samuel

Dana’s note to Bulkeley, $36 42

And also by moneys received by him for

debts and sales of land, &,c., 725 2

- $761 44

They allowed the accountant the balance of

his last administration account, 757 49

And divers sums since paid by him as

executor, 12 17

$769 66 *153Which left a balance of 8 dollars 22 cents, as above stated. The report of the referees was accepted by the judge of probate, and his decree made in conformity thereto; from which decree, Anna Dana, the executrix, appealed, and filed her reasons of appeal, of which only the two following were material, viz., First, the said account appears to be founded upon a report of certain referees, and to be a part of the same, when there is no law authorizing the submission of an administration account to referees, not had the referees any jurisdiction thereof; and, secondly, the decree upon said account appears to have been wholly founded upon the report of said referees, and not * upon the investiga- [ * 202 ] tion, adjustment, and allowance thereof by the judge, as by law it ought to have been.

The cause was shortly spoken to on the second day of the term, and on the ninth day of the term, (Dana, C. J., Sedgwick, Sewall, and Thacher, justices, being present,) the chief justice delivered it as the unanimous opinion of the Court that the reference entered into before the judge of probate was a nullity, it not being authorized by " the statute 1789, § 1; that the judge of probate had no authority to allow a reference of any demand which an executor or administrator, as such, has against the estate of the testator or intestate ; and that the statute extends to such demands only as he had in his own private capacity against the deceased in his lifetime.

Decree reversed.