POPE, District Judge.
[1] The first point made against the decision of the referee is that he was without jurisdiction to deal in a summary way with the controversy between the trustee and the administrator of the estate of F. W. Hall, but that any such controversy should have been determined by a suit brought in the ordinary way. Whatever force this contention might have had in the presence of an objection to the referee’s jurisdiction at the outset, the objection must be considered as waived by the course pursued by the administrator. To the order to> show cause issued by the referee the administrator appeared generally, without making any question upon the jurisdiction of the referee, pleaded to the merits, and prayed that he might be discharged and permitted to retain possession of the property as the administrator of said F. W. Hall. He went to trial upon the case made by the pleadings, and raised no question as to- the jurisdiction of the referee until this petition for review from the referee’s decision was filed. Under this state of the record the case is within Bryan v. Bernheimer, 181 U. S. 188, 197, 21 Sup. Ct. 557, 45 L. Ed. 814, wherein it is held upon the same condition of the record that the adverse party must be deemed to have acquiesced in the form of procedure adopted, and cannot be heard after an adverse decision to raise a question of jurisdiction.
[2 ] Upon the merits of the present case, a careful consideration of the record leads to a concurrence in the referee’s conclusions and in much of the reasoning by which the conchtsious are reached. So much of the stock as was bought after the death of F. W. Hall manifestly did not belong to his estate. As to the portion which F. W. Hall had acquired and turned over within ten days before his death to his sous, to he administered by them under the firm name of F. W. Hall & Sons, the conclusion to be announced is hardly less clear. The act of F. W. Hall in intrusting this to a firm thus entitled was a standing declaration to creditors of such firm, both before and after [580]*580his death, that it was an asset of the business and one upon which they might extend credit. His administrator succeeded to no higher ground than was occupied by the deceased. Since the latter was satisfied to have the stock, as it existed in September, 1910, controlled by an entity known as'F. W. Hall & Sons, and since his heirs at law were satisfied to have this arrangement continued until the very day before a proceeding in bankruptcy, drawing, during the intervening 16 months, from the business for their support, it would savor of great injustice at such late date to permit an administrator to seize and hold what his intestate and what the beneficiaries for whom he is acting have effectively said by their conduct belonged to the business and not to the estate; especially where, as here, the result would be to leave creditors who have sold upon the appearances of the business absolutely without remedy.
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