Dana v. Prescott

1 Mass. 152

Opinion

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.