The record does not disclose what admissions, if any, were made at the hearing in the court below, and there being no waiver of jury trial or agreement as to facts nor evidence offered, the court was without power to decide a controverted issue of fact raised by the plead *391 ings. Doubtless tbe effort to end an unseemly controversy between members of tbe same family led tbe learned judge into error.

Tbe case must be remanded for tbe proper determination of tbe material issues.

Error and remanded.