
    Jacob Price, Administrator of Eliza Mitchell, deceased, vs. Ellen Mitchell, by Elijah Gates, her Guardian.
    It seems that where an administrator’s account is contested in the probate court by one of the distributees, and it is sought to hold him liable for the services of a slave of the estate for a series of years, as an offset to which, the administrator sets up disbursements for the board and maintenance of the distributee, it is a case peculiarly fitted for the consideration of a jury under the statute (How. & Hutch. 472, § 17, 18,) in the circuit court; yet, if it be otherwise agreed that the probate court shall determine the controversy, and that court does determine it accordingly, its decision, if otherwise correct, will not be set aside.
    Where an administrator, to a petition, seeking to make him liable for the hire of a slave of the estate not accounted for in his accounts, plead that the petitioner was not a distributee of the estate, but afterwards filed an answer to the merits of the petition ; it was held, that the latter answer waived the former plea.
    
      The charge by an administrator, in his accounts as such, for disbursements made by him for board and maintenance of infant distributees, does not pertain to an administration account, and is not allowable, as a general rule.
    Yet where an administrator, in, the settlement of his final account, was sought to be held liable by the children and distributees of his intestate, for the hire for a series of years of a slave of the estate of the intestate ; and as an offset the administrator charged for sums expended for these distributees, both before and after the grant of letters of administration to him; and it was agreed by the parties, that the probate court should decide the matter, and “in making its decree, should take into consideration the hire of the slave, and also the support of the heirs for the same period of time, and strike the balance; ” and the probate court made its decree accordingly upon that basis ; it was held, on appeal from that'decree, that the high court of errors and appeals would not disturb a result which had been brought about by the parties themselves, and the decree must therefore stand.
    On appeal from the probate court of Franklin comity ; Hon. James M. Jones, judge.
    Ellen Mitchell, by Elijah Gates, her guardian, excepted to the account of Jacob Price, administrator of Eliza Mitchell, deceased, for final settlement at the March term, 1846, of the probate court of Franklin county. She filed her petition, setting up that Price should be charged with the services of a man slave named Gato, from April 29th, 1839, until the first day of March, A. D. 1845, at the rate of §125 per year. Other matters were also embraced in the petition not necessary to notice. At the April term, 1846, it was agreed by the parties, that the case should be considered at issue, to be tried by the probate court; and at that term, Price plead that the petitioner was not the heir of Eliza Mitchell. To this plea, replication and rejoinder were filed. But without any disposition of this plea, at the same term of the court, Price filed an answer to the petition, setting up that the petitioner and her brother, Josiah Mitchell, were the legal heirs of Eliza Mitchell, and as such indebted to him for board and maintenance, from the first day of April, 1837, to June, 1844, and Josiah Mitchell was indebted to him in like manner.
    Thereupon, Elijah Gates was appointed guardian ad litem for Josiah Mitchell; and the record then recites as follows; “It was agreed between the parties, that the court shall take into consideration in making its decree, the hire of the slave Cato from the first day of January eighteen hundred and thirty-seven; also the support of the said Josiah and Ellen Mitchell, for the same time; and that no claim shall hereafter be made for the hire of said slave Oato, after that time except the controversy now before the court.”
    Various depositions were taken on either side, and the cause was submitted to the probate court, at the May term, 1846; when that court decreed, that “ Jacob Price account for the sum of two hundred and fifty dollars for the hire of the slave Cato, as charged in the said petition, over and above the sum of five hundred dollars, allowed by this court to the said Jacob Price, for the boarding, clothing, medicine and necessaries furnished by him to the said Ellen Mitchell and Josiah Mitchell, being two hundred and fifty dollars for each ; the said court estimating the value of the hire of said slave, as charged in the petition, at seven hundred and fifty dollars, and the boarding, clothing, medicines and other necessaries furnished by said Jacob Price to the said Ellen Mitchell and Josiah Mitchell, at five hundred dollars.
    Price, feeling aggrieved by the decree, appealed.
    
      J. Marshall, for appellant.
    1. The plea was a good bar to the petition. Story’s Eq. PL § 666, 727 ; Porter v. Holloway, 7 How. (Mi.) Rep.; Story’s Eq. PL 668, and note; it rvas error, therefore, to award a judgment without disposing of that plea.
    2. The probate court had full jurisdiction of the matter and the parties, and as the slave was the property of the heirs, in whatever manner Price was required to account for the slave, his charges for maintaining the wards were legitimate offsets ; as the wards, in any event, would 'obtain the money. Magee v. Ford, 5 S. & M. 769.
    3. The proof shows, that the allowance of the. five hundred dollars was a capricious estimate, and made, without data or regard to the proof, bv the judge below; the offsets were legal, and greatly exceeded the petitioner’s demands, and should have been allowed in extinguishment of them.
    
      Montgomery and Boyd, for appellees,
    replied,
    1. That the voluntary answer overruled the plea, and was an admission of heirship.
    2. That the administrator had no right to charge for maintenance and money expended for the wards. His whole offset ought to have been rejected; the appellees were the only ones to complain of the decree; they did not do it, and the appellant certainly could not.
    3. The proof sustained the decree so far as the court had the right to make such a decree.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is an appeal from the probate court of Franklin county.

Ellen Mitchell, a minor heir of Eliza Mitchell, deceased, by her guardian, filed exceptions to the settlement of Jacob Price, administrator of the estate of Eliza Mitchell, claiming that the said Price had failed to account for the services of a certain slave, which he had enjoyed for the term of six years. It was agreed that the issue should be tried by the probate court. There was filed a plea that the petitioner was not the heir of the administrator’s intestate, but this ground of defence was subsequently waived by the administrator filing an answer to the merits of the petition. Another heir of the intestate, a brother of the petitioner, was also united in the petition. The answer of the administrator, 'in the main, sought to set-off the claim by a charge for disbursements and expenses for the board and maintenance of the heirs. Proofs were taken, and the court in its decree allowed the whole amount charged for the services of the slave, but allowed that sum to be credited with the sum of five hundred dollars, as so much disbursed by Price for the use of the children, and thus decreeing the sum of two hundred and fifty dollars against the administrator.

In the first place, it may be observed that this case was peculiarly one fitted for the consideration of a jury, and under the statute (H. & H. 472, § 17, 18,) the complainant in the probate court could have insisted, that the issue should have been tried in the circuit court, but it was otherwise agreed that the probate court should determine the matter in controversy. The decision of the question of fact was, therefore, by the consent of parties, submitted to that tribunal.

Next, the defence of the administrator, in strict law, was insufficient, and, under any other circumstances, should have been rejected altogether. An account, charged by an administrator, for board and maintenance of infant distributees, does not pertain to an administration account. Green v. Green, 3 S. & M. 526 ; Jones v. Coon et al., 5 Ibid. 751; Washburn et al. v. Phillips, 5 Ibid. 600. The set-off also was a mixed account of charges alleged to have been warranted by expenditures, incurred for the heirs as well before as after this grant of letters of administration. But all these difficulties as to the legitimacy of the evidence, seem to have been, to some extent, obviated by an agreement in the record, that the probate court “ in making its decree, should take into consideration the hire of the slave, and also the support of the heirs for the same period of time, and strike the balance.” The cause presents much the appearance of an arbitrative submission, and even viewing it as a finding of a jury upon the evidence, the preponderance of evidence is not so great against the decree as to call for a reversal in this court. Indeed, by the terms of the submission, it would seem that Price was to be looked upon as a quasi guardian, without which his defence, in the nature of set-off, could not have been admissible. Therefore, considering the case altogether, 'we are inclined not to interfere in a result which has been brought about by the parties themselves.

Decree affirmed.  