The opinion of the Court was delivered by
Royce, J.The only authority for referring claims in contest before the court of probate, is contained in the 69th section of the probate act. It is there enacted — “ That “ the executor or administrator may agree with the creditor “ or debtor, before the probate court, to submit any, or all “ demands between them, under a rule of said court, to re- “ ferees; in which case their award, being made to, and ac- “ cepted by, said court, shall be final between the parties.” As the whole proceeding must originate in the mutual consent and agreement of the parties, it becomes essential to the sufficiency of this plea in bar, that it should disclose an agreement to submit, entered into by competent and proper parties. The only competent parties in such a case are the executor or administrator, on one side, and a creditor or debtor of the estate, on the other. In the present instance, the alleged basis of the reference was an agreement between the administrator and the widow of the intestate; the latter seeking to charge the. administrator with partnership profits and effects, in order to increase her distributive share in the estate. But the widow, merely as such, is neither a creditor nor debtor of the estate, within the meaning of this section of the statute. Those terms are evidently used in their common and popular acceptation. The reference is authorised as a substitute for an adjustment before commissioners, and the other modes of adjudication established by law. And this defect of parties seems to have pervaded the whole proceeding, as set forth in the plea; it being alleged that the referees “ heard the parties, as well the said Jedediah as the said Laura,” and reported a balance against the estate.
Another objection arises from the want of any averment in the plea, showing that Biall Boynton became a party to the re*111ference. As no previous settlement between the surviving partners is alleged, it must bfe taken that they were alike interested in the subject submitted; and it is certain that if either partner omitted or refused to join in the reference, his rights wére not concluded by it. ■
Again; — should the widow be treated as a creditor, for the present purpose, and the administrator as her debtor, in his character of administrator; yet he appears to have also acted in this transaction as an alleged debtor of the estate, in his character of partner. ^And the statute docs not authorise a reference between a creditor of the estate and a debtor of the estate, but only between the estate (viz. the administrator, as such,) and a creditor or debtor thereto.
We have thus far considered the plea without regard to the probate record therein referred to. It is apparent that the record teAds as much to negative the plea, in some particulars, as to support it in others. But as a repleader would probably be allowed, if the reference, as it appears upon the record, is entitled to prevail, it is proper to notice an objection which must evidently attend the case, under any form of pleading. We allude to the double capacity in which Jedediah Boynton is necessarily presented. As administrator, he was the representative of the estate, whilst as partner with Biall Boynton, he assumed the attitude of a supposed debtor to the estate. He, therefore, appeared both as creditor and debtor, in reference to jtjie same subject matter. It is true, that this consideration furnishes no legal objection to the trial of demands for, or against an administrator, in the probate court, before commissioners, or upon appeal duly taken. But those proceedings are had, under provisions of a statute, very differently expressed. Upon these several grounds, we are of opinion that the reference cannot be sustained.
Judgment that the plea is insufficient.