
    Anna Dana, Executrix, Appellant, versus Abel Prescott, Administrator.
    Reference entered into before the judge of probate by an executor or administrator of any demand which the executor or administrator, as such, has against the estate of the deceased, is void.
    The appellant, Anna Dana, was the executrix of the last will and testament of Samuel Dana, who was formerly the executor of the last will and testament of John Bulkeley, Jun.; and the appellee, Abel Prescott, was the administrator, de bonis non, with the will annexed, of said Bulkeley. At the Probate Court in this county, in October, 1799, the third account of Samuel Dana, (then deceased,) as he was executor of said Bulkeley, was presented for settlement and allowance by Anna Dana, executrix of Samuel Dana; and the heirs at law of said Bulkeley, and others concerned, having been duly notified to appear, the appellee, administrator as aforesaid, and one of the legatees in the will of Bulkeley, for himself and divers other of the legatees in the same will named, appeared and objected to the allowance of the account exhibited by the appellant; “ where upon the said Anna, for the accountant, and said Abel, who is adversely interested as aforesaid, refer the settlement of said account, and all demands which said Samuel * might have had, as executor, upon the estate of said Bulkeley for moneys paid or service done — and the said Abel all claim he might have had upon said Samuel, deceased, as executor, for any estate of said Bulkeley, which he ought still to account for, to the award, &c of referees [named.] ”
    
    The referees reported that there was due from the estate of Bulkeley 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
    
      Which 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, nor 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 investigation, adjustment, and allowance thereof by the judge, as by law it ought to have been.
    
      Ward and S. Dana for the appellant.
    The Attorney-General (Sullivan) and T. Bigelow for the appellee.
   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.  