
    Joseph Anderson v. John Baker, Administrator of Michael Anderson, deceased.
    1. The provision in section one of the act of March 19, 1852, amending the administration act of March 23,1840 (S. & C’s Stat. 617), that, where the justice of a claim, exceeding one hundred dollars, presented against an estate,' is doubted by the executor or administrator, and he enters into an^agreement with the claimant to refer the matter in controversy to three disinterested persons, the referees shall be approved of by the probate judge of the county, does not authorize such probate judge, or the probate court, to receive the report of the referees and act upon it. "When the probate judge approves of the referees, his duty and authority in the matter end.
    
      2. The reference must be perfected in, and the report of the referees made to the court of common pleas, and therein disposed of under the provisions of original sections 88 and 89 of the administration act. S. & C's Stat. 582.
    Error, to the court of common pleas of Van Wert county.— Reserved in the district court.
    On the 7th March, 1859, Joseph Anderson presented a claim for six hundred and thirty dollars against the estate of Michael Anderson, deceased, to John Baker, the administrator,' and the latter, doubting the justice of the claim, entered into an agreement in writing with the claimant, in pursuance of the first section of the act of March 19, 1852, “to amend the act entitled ‘ an act to provide for the settlement of the estates of deceased persons,’ passed March 23,1840” (S. & C. Stat. 617), to refer the matter in controversy to three disinterested persons, approved by the probate judge of Van Wert county, where the administrator resided.
    The agreement and approval of the probate judge were filed in his court, and he entered the cause on his docket. The referees appeared in the probate court and were sworn, and witnesses were sworn and examined before them; and, after hearing the proofs and allegations of the parties, the referees reported to that court a finding of six hundred and sixteen dollars and thirty-seven cents in favor of the claimant, and the probate court rendered judgment on this finding against the administrator.
    Upon petition in error, the court of common pleas reversed this judgment. To reverse the judgment of reversal, a petition in error was filed in the district court and was therein reserved to this court for decision
    
      Rose § Cowin and Calloway Rush, for plaintiff' in error.
    
      
      J. II. Reid and J. N. Alexander, for defendant in error.
   By the Court:

Original section eighty-six of the administration act of March, 23, 1840 (S. & C.’s Stat. 617, sec. 263), provided that if the executor or administrator doubts the justice of any claim presented to him, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to three disinterested persons to be approved of, in case the claim exceeded one hundred dollars, by one of the associate judges of the county.

The eighty-eighth section of the same act (S. & C.’s Stat. 582), provides that upon filing the agreement of reference and the approval of the judge, with the elerh of the court of common pleas, he shall docket the cause and enter a rule referring the matter in controversy to the persons so selected.

The eighty-ninth section makes it the duty of the referees to proceed to hear and determine the matter, and make their report thereon to the “said court,” and authorizes the court to set aside or confirm the report and adjudge costs, and declares that the judgment of the court thereupon shall be valid,and effectual, etc.

“The court” mentioned in these several sections, is the court of common pleas.

After the constitution of 1851 took effect, and the office of associate judge of the court of common pleas ceased, it became necessary to have some other authority approve the referees. Accordingly the act of March 19, 1852, amending the administration act was passed (S. & O.’s Stat. 617, secs. 262 and 263), repealing the original section eighty-six, and re-enacting it with the exception that, instead of providing for the approval of the referees by one of the associate judges, the provision is that “ the referees shall be approved of by the probate judge of such county.” No other change was made.

• In the present case, then, when the probate judge approved of the referees his duty and authority in the matter ended. The agreement and the approval of the probate judge should have been filed with the clerk of the court of common pleas, and the matter proceeded with as it would have been before the office of associate judge was abolished.

Erom this, it follows that the report of the referees to the probate court, and the action and judgment of that court upon it, wore without authority of law.

The court of common pleas properly reversed that judgment, and its judgment of reversal must be affirmed.

Judgment accordingly.  