The statute authorizes the Probate Court upon the application of the personal representative of a deceased person to order a sale of real estate for assets to pay debts whenever the personal estate is exhausted and there are debts outstanding and unpaid. And also authorizes said Court to take an account of the administration so as to determine the necessity for such sale. Bat. Rev. ch. 45, § 99.
*94It was therefore proper for the plaintiff to file his petition as he did in the Probate Court to sell the land. The said Court had jurisdiction.
When the defendants were brought in as parties, and objected to the sale, that did not oust the jurisdiction ; but when they objected to the sale for the reasons alleged — that there was no debt due and unpaid, and that the plaintiffs had wasted the personal estate — then issues of fact were raised which the Judge of Probate could not try. And it became necessary that he should transfer the issues to the Superior Court in term time to be tried, or there might have been an appeal. C. C. P. § 490. And then the Superior Court in term time'could dispose of all the questions, legal and equitable, meeting the suggestions in Wiley v. Wiley, Phil. 131, and Finger v. Finger, 64 N. C. 183.
It was error, therefore, to dismiss the petition for want of jurisdiction in the Probate Court. There is no other point presented to us at this time.
Error.
Per Curiam. Judgment reversed.