#### In re LILLIAN B. SHUTT, Administratrix.

(Filed 4 January, 1939.)

1. Executors and Administrators § 19: Courts § 2c — Unchallenged ruling that clerk was without jurisdiction held to terminate proceeding.

The clerk appointed a referee to hear claims against the estate of a deceased under C. S., 99, and thereafter approved the report of the referee. On appeal, the Superior Court ruled that the clerk had no authority in the premises. Held: The unchallenged ruling vacated the supposed reference, and ended the matter, and the further ruling of the court that the referee’s report was binding on other grounds is a nullity notwithstanding the broad jurisdiction of the Superior Court under C. S., 637.

2. Executors and Administrators § 19—

Deceased’s widow filed claims with herself as administratrix of the estate, which claims she denied as administratrix solely as a matter of propriety. Held: No proper predicate for the determination of the claims was laid.

Appeal by Lillian B. Sbutt from Phillips, J., at June Term, 1938, of Eoestth.

Proceeding to determine validity of claims against tbe estate of Henry D. Sbutt, deceased.

Lillian B. Sbutt, widow of Henry D. Sbutt, deceased, filed three claims witb berself as administratrix of ber husband’s estate, which in her representative capacity she did not care to accept; wherefore, as administratrix, she petitioned tbe clerk of tbe Superior Court to appoint a referee to bear tbe merits of tbe claims and to report bis findings together witb bis conclusions of law to tbe clerk. This was done.

*685Tbe referee beard tbe claimant, contesting beirs, and tbe administra-trix, and reported bis findings of fact together with bis conclusions of law to tbe clerk. Claimant filed exceptions thereto.

Tbe clerk ruled that tbe proceeding was under C. S., 99, and as the “findings of tbe arbitrator have not been impeached for fraud or collusion,” tbe report of tbe referee was approved.

From this judgment, tbe claimant appealed to tbe Superior Court.

Tbe judge held that tbe clerk was without jurisdiction to appoint a referee under C. S., 99, but that tbe conduct of tbe claimant, as individual and administratrix, amounted to an agreement to arbitrate tbe matter, which bad not been impeached for fraud or collusion, and tbe report of tbe referee was therefore binding.

Claimant appeals, assigning errors.

Ingle, Bucher & Ingle for appellant.

Parrish & Deal for appellees.

Stacy, 0. J.

Tbe proceeding has at least tbe merit of novelty. Tbe clerk thought be was acting under C. S., 99. Tbe judge held that tbe clerk bad no authority in tbe premises, if indeed tbe proceeding may properly be styled a judicial one, which may be doubted. This ruling, which is unchallenged, vacated tbe supposed reference and put an end to tbe matter, notwithstanding tbe broad jurisdiction of tbe Superior Court under C. S., 637. Tbe administratrix expressed no doubt as to tbe justness of tbe claims presented, but simply said as a matter of propriety she was in no position to admit them. This falls short of a proper predicate for tbe determination of tbe claims.

We were informed on tbe argument that claimant has lately resigned as administratrix of her husband’s estate and that another has been appointed in her stead. Tbe new representative has not been made a party to this proceeding. No doubt tbe matter will now be adjusted in some approved way.

Proceeding dismissed.