
    David Cottle, Appellant, &c.
    Although it is illegal for a judge of probate to act as the agent or attorney oí an heir or other person interested in an estate within his jurisdiction, in any matter which may have relation to any sentence or decree passed by him in his office, yet he does not thereby acquire such an interest in the estate as will oust him of his jurisdiction or render his official acts void.
    A judge of probate, having a demand against the estate of a person deceased, is interested in the estate, within the meaning of St, 1817, c. 190, § 5, and can have no jurisdiction over the estate, unless he will relinquish his demand.
    The appellant applied to the judge of probate for the county of Barnstable for letters of administration on the estate of Nathaniel Russell of Nantucket, deceased, intestate. He represented, that the judge of probate for Nantucket was interested in the estate, being a creditor of the deceased and an attorney to two of the heirs. The judge of probate for Barnstable decreed that he had no jurisdiction in the case : whereupon this appeal was claimed, 1. because by Si. 1817,
    
      
      t. 190, § 5, it is provided, that whenever the judge of probate of Nantucket shall be interested in the estate of any person deceased, within his jurisdiction, the same shall be settled in the Probate Court in the county of Barnstable ; and 2. because it was shown that the judge of probate of Nantucket was interested in the estate.
    Upon the hearing in this Court it appeared, that the judge of probate of Nantucket had granted letters of administration to Cottle upon the estate of Russell, that the estate had been represented insolvent, and that the judge himself was a creditor of the deceased and had had his claim allowed by the commissioners of insolvency.
    The case was briefly argued by Williams, for the appellant, and K. Whitman, for the respondent.
   Morton J.

delivered the opinion of the Court. If the judge of probate for the county of Nantucket was interested in the estate of Nathaniel Russell deceased, he had no jurisdiction in the case, and the administration granted by him was void. The settlement of an estate under the authority of a judge interested in it, would be as inconsistent with the principles of natural justice as it is repugnant to the positive enactments of the legislature.

That it is improper for a judge of probate to undertake to act as the attorney or agent of an heir, or person interested in an estate within his jurisdiction, and that such trust requires of him duties incompatible with the correct discharge of his official functions, is obvious. The legislature have expressly prohibited him from becoming the agent or attorney of any person, in any case which may have relation to any sentence or decree passed by him in his office. But we think this not such an interest as would oust him of his jurisdiction and render his official acts void.

That a creditor of an estate is interested within the meaning of St. 1817, c. 190, § 5, we can have no doubt. The quantum of interest is immaterial ; but whenever there is a direct interest, however small in amount, the statute is imperative.

A judge of probate having a demand against the estate a person deceased, is not necessarily so interested that he can have no jurisdiction over the estate. He may relinquish or discharge his demand. The estate of Russell was represented insolvent, and had no claim been presented by the judge, or had it been disallowed by the commissioners, he would not have been interested. His claim would have been barred by the insolvency. But his claim was presented and allowed, and in the distribution of the estate, and in other questions arising in the settlement of it, he had a direct interest.

The judge of probate for the county of Nantucket being interested in the estate, it can only be settled in the Probate Court of the county of Barnstable. The judge of probate for the latter county was bound to take cognizance of the application, and to grant letters of administration. He having refused to do this, the decree must be reversed and the pa pers remitted to him, that the estate may be settled according to law, in this county. 
      
       See Revised Stat, c. 83, § 26.
     
      
       See Revised Stat. . 83, § 15.
     
      
       See Revised Stat. c. 83, $ 15.
     
      
      
         See Judge of Probate v. Gillotson, 6 N. Hamp. R. 297
     