The Court of Probate has jurisdiction “ to audit the accounts of executors, administrators and guardians,” under the Code, subject to transfer and appeal, as in other cases. See also, Con. Art., IY, see. 17.
Where a Judge of Probate was, at the time of his election, administrator of an estate, it was supposed to be contrary to principle that he should audit an account of his own; and, therefore, the act of 1871 — 72, chap. 197, sec. 1, provides that *328in such case the Judge of the Superior Court may make such order as may be necessary in the settlement of the estate; and may audit the accounts or appoint a Commissioner to do so, and report to the Judge for his approval, &c. See Battle’s Rev., chap. 90, section 6. And when the account is approved by the Judge, he shall order the Judge of Probate to make the proper record.
In the ease before us, the defendant was Probate Judge, and was administrator at the time he was elected. So that it is a case in which he could not audit the account, and falls under the act aforesaid, authorizing the Judge of the Superior Court to act.
The summons was returnable before the Probate Judge; but the record does not show that any action was taken by him, or that the parties moved before him, and the next we hear of the case it is before the Judge in term, and the plaintiff files his complaint and the defendant answers, and the Court refers to a Commissioner to audit the accounts, who reports an account, to which exceptions are filed by the defendant which are overruled and the defendant appeals.
This is the first case of the kind that has been before us, and the practice is new. Inasmuch as the Probate Judge can not audit an account in a case where he is a party, it would seem that the summons ought to be returnable before the Superior Court Judge; but then, the Con., Art. IY, sec. 17, confers upon the clerk jurisdiction to audit the accounts of administrators, &c., without having excepted the ease in which he himself shall be the administrator. The course pursued in this case may be the most convenient solution of the difficulty; return the summons before the clerk or Probate Judge, which answers the constitutional requirement, and then, as the Superior Court has jurisdiction by transfer or appeal, it may proceed under the act of 1871-’72, supra.
There is therefore, no force in the objection on the part of the defendant, that the Judge of the Superior Court had no jurisdiction. He had jurisdiction of the subject matter — origi*329nal under the act aforesaid ; appellate under the Constitution and the Code. And he had jurisdiction of the person by reason of the acceptance of service, and the appearance and answer, whatever may have been the irregularity of transferring the case from the Probate to the Superior Court.
The first six exceptions on the part of the plaintiff to the report of the Commissioner are well taken, which show the report to be so radically defective that the account will have to be stated anew, and therefore it is not necessary that we should notice the other exceptions.
The exceptions were considered below at Spring Term, 1873; but his Honor did not deliver his opinion until after the term expired, and therefore the plaintiff had not the opportunity to appeal. This entitled the plaintiff at Fall Term to have the judgment, which had been entered as of Spring-Term vacated.
There is error. This will be certified and the ease remanded to the end that the judgment may be vacated, the exceptions sustained, (the first six, the others not passed on,) the report set aside, and a new account ordered, and such other proceedings had as the law directs.
Per CubiaM. Judgment accordingly.