Bacon

Thomas, J. The judge of probate was of opinion that he had no jurisdiction in the case, on the ground of interest. He was one of the executors of the will of William C. Hunneman. If the will of Hannah Hunneman is probated, under its provisions the estate of which the judge is executor will be entitled to recover claims for rents to the amount of several hundred dollars. The question is, whether he was interested in the estate of Mrs. Hunneman. The Rev. Sts. c. 70, § 1, say, “ When any judge of probate shall be disqualified to act, by reason of his personal interest.” But in the Rev. Sts. c. 83, § 15, providing for the transfer of cases to the court of the most ancient adjoining county, the language is, “ When a judge of probate shall be interested.” By the St. of 1851, c. 253, these provisions do not apply unless the interest exceeds the sum of one hundred dollars. The St. of 1856, c. 208, § 1, provides for the transfer of cases in which the judge of probate is or may be executor, administrator, guardian or trustee. The latter statute, though not applicable to cases existing at the time of the appointment of the judge to be executor of the will of William C. Hunnewell, indicates, we [392] think, the sense of the legislature as to the nature of the interest which would disqualify a judge of probate from acting in a cause. But there is a consideration which we think conclusive. The estate of which he is executor is interested in the probate of the will. He must, or may, represent that estate on the question of probate. He must, or may, be party and judge. The cases cited by the appellant have no tendency to sustain the jurisdiction of the judge in this case. The case of Sears v. Dillingham,, 12 Mass. 357, established that an executor, after accepting the trust, was not a competent witness to establish the will. In Cottle, appellant, 5 Pick. 482, it was said, that the' fact that the judge of probate had acted as the agent or attorney of a creditor of the estate, however improper, would not oust him of his jurisdiction, so as to render his official acts void. The judge however was held not to have jurisdiction, on another ground, to wit, that he was a creditor. In Lyman v. Conkey, 1 Met. 317, no question of interest was raised. In Northampton v. Smith, 11 Met. 390, it was decided that a bequest of money to trustees, to be devoted to the use of indigent persons in certain towns, did not make a judge of probate, who was an inhabitant of one of those towns, interested, within" the provisions of the Rev. Sts. c. 83, § 15; and this on the ground that the town, in its corporate capacity, took no interest under the will, and of course the judge, as an inhabitant of that town, had no interest. In Gay v. Minot, 3 Cush. 352, it was held, that where the judge of probate was a debtor to the estate, though the debt was who ly secured by mortgage, he had no jurisdiction. Decree affirmed.