Estate of Jarboe v. Jarboe

GRAVES, J. This cause reaches this court from an appeal taken by O. M. Jarboe from a judgment entered against him by the circuit court of Carroll county. The cause originated in the probate court of said county and from a judgment there the said O. M. Jarboe had appealed to the circuit court. Pertinent record facts and history of the case are as follows: M. W. Jarboe and O. M. Jarboe were partners in the milling business from 1891 to 1904, at which time the copartnership terminated by the death of M. W. Jarboe. M. W. Jarboe left as his heirs his widow and three children, i. e., O. M. Jarboe, H. W. Jarboe and Jessie Yan Trump. The widow qualified as administrator of both the partnership and individual estates. She served but a short time when she died, and O. M. Jarboe, H. W. Jarboe and R. W. Yan Trump, husband of Jessie Yan Trump, qualified as administrators de — 71 — bonis non, of both estates. For reasons not clearly appearing in the record, bnt easily surmised, this administration was of but short duration. Their letters were revoked and Ralph F. Lozier was appointed and qualified as administrator de bonis non of both estates. Just how the several probate orders were made does not appear of record, but from start to finish it seems that there was a desire to keep the administration of the two estates in the same hands. After Mr. Lozier’s appointment, all the parties interested, on August 10, 1905, entered into a certain written agreement, which we set out in full because of the admissions made therein, as well as for the further reason that it forms the sole basis for appellant’s contentions in this court. This agreement was filed in the probate court of Carroll county, and below will be found the court entry containing the agreement: “In the probate court of said county on the 10th day of August, 1905, the following, among other proceedings were had, vis: "“In the matter of the estate of M. W. Jarboe, deceased. “In the matter of the partnership estate of M. W. Jarboe & Son. . “Comes now the administrator, de bonis non, Ralph F. Lozier, and also comes O. M. Jarboe; H. M. Jarboe and R. W. Van Trump, in person and by their attorneys, all of whom enter their appearance and waive notice of the claims here in court filed. ' “Comes now R. M. Van Trump, and files a claim against the individual estate of M. W. Jarboe, deceased, in the sum of $.......... “Also comes O. M. Jarboe and files his claim and demand against the individual estate of M. W. Jarboe, deceased, and also files claim and demand against the partnership estate of M. W. Jarboe & Son in the sum of $................ — 72 — “Also comes the partnership estate of M. W. Jarboe & Son by Ralph F. Lozier, administrator, de bonis non, and files certain claims and demands against the individual estate of M. W. Jarboe, deceased. “And whereas, each of the several parties have filed counterclaims against the other parties which are interposed as a defense against said claims and demands, as above recited; “And whereas, in order to finally settle and adjust the said conflicting claims and demands, the said parties have entered into a certain written stipulation and agreement as follows: “ ‘Whereas, an administration of the individual estate of Milton W. Jarboe, deceased, is pending in the probate court of Carroll county, Missouri: “ ‘And whereas, the partnership estate of M. W. Jarboe & Son is being administered in connection with the administration of said individual estate, by Ralph F. Lozier, administrator de bonis non, of said estate; “ ‘And whereas, R. W. Van Trump has filed'in the probate court aforesaid, a certain demand and claim against the individual estate of M. W. Jarboe, deceased, .and also against the partnership estate of M. W. Jarboe & Son. “ ‘And whereas, both of said estates have a counterclaim and demand against said R. W. Van Trump, which counterclaim and demand have been interposed against said claims of said R. W. Van Trump; “ ‘And whereas, O. M. Jarboe, surviving partner of the partnership estate of M. W. Jarboe & Son, has filed a certain claim and demand against said individual estate of M. W. Jarboe, and also against the partnership estate of M. WeJAmbbeliS Son; “ ‘And whereas, botMofisaM'estates have demands and counterclaims againstr said O. M. Jarboe, and have interposed the same as a defense against said claims and demands of said O. M. Jarboe; — 73 — “ ‘And whereas, the partnership estate of M. W. Jarboe & Son has filed certain claims and demands against the individual estate of M. W. Jarboe, deceased ; “ ‘And whereas, the individual estate of M. W. Jarboe has filed certain demands and counterclaims against the claims and demands of said partnership estate as aforesaid; “ ‘And whereas, all of said claims, demands and counterclaims aforesaid are now pending and undetermined in the probate court aforesaid; “ ‘And whereas, it is the desire of the respective estates and of all claimants aforesaid, and of all heirs and distributees of said estates to have the aforesaid claims, demands, and counterclaims, fully, finally, and expeditiously determined and adjudicated, and to this end have entered into the following stipulations, to-wit: “ ‘1st. Ralph F. Lozier, administrator de bonis non, of the estates aforesaid, has waived and hereby waives notice of the presentation of the respective demands as aforesaid. “ ‘2d. The respective claimants aforesaid have waived and hereby waive notice of the presentation of and filings of the respective counterclaims, and demands as aforesaid. “ ‘3d. The administrator, de bonis non, of the estates aforesaid, and all of the claimants .aforesaid, in open court enter their voluntary personal appearance, waiving all notice or service of process and respectively submit themselves and the matters in controversy aforesaid, to the jurisdiction of the probate court aforesaid for adjudication. “ ‘4th. The probate court aforesaid, is hereby authorized and directed by order made and entered of record, to appoint some attorney-at-law as referee, to whom shall be referred by such order of court, all of the claims, demands and counterclaims, aforesaid, for determination and adjudication. — 74 — “ ‘5th. It is stipulated and agreed that all of the aforesaid claims, demands and counterclaims, are and shall he consolidated, determined and adjudicated', in one finding by said referee. “ ‘6th. The said referee shall within ten days from the date of his appointment, proceed to take testimony offered by the respective claimants, estates or parties to said controversies, and at the conclusion of the testimony shall forthwith make and return to said probate court by September 15, 1905, his conclusions of fact ahd law, together with his recommendations as to the judgment or judgments to be entered on the respective claims, demands or counterclaims, and on the filing of the report of the said referee, in the probate court, aforesaid, it is agreed that said probate court may and shall approve, and in all respects confirm, the report aforesaid and all parts thereof. “ ‘7th. All testimony taken or offered before said referee shall be taken in stenographic notes by some competent stenographer, and thereafter transcribed; the parties hereto waiving the signing of the testimony by the respective witnesses, after the same has been transcribed and certified to by the stenographer. “ ‘8th. It is agreed that the rules of evidence applicable 'to the courts of the State of Missouri, shall govern this reference and that objections to the introduction or exclusion of evidence shall be made at the time such evidence is offered, and exceptions to the rulings made shall be deemed saved. “ ‘9th. The referee, for good cause shown, may continue or postpone the hearing of said cause for a reasonable time. “ ‘10th. A transcript of all the proceedings before said referee shall accompany his report, and shall become a part of the record in said cause. “ ‘11th. Within five days after the filing of said report of said referee, in the probate court aforesaid, any claimant, estate or party to said proceedings, or — 75 — heir or distributee of said estates, may take an appeal from the order and judgment of the probate court, and from the report of said referee, by filing a statutory affidavit for an appeal and bond for costs of appeal. It is expressly stipulated and agreed that said appeal shall be returnable to the September term, 1905, of the Carroll Circuit Court, the parties hereto waiving the statutory notice of appeal. “ ‘12th. It is expressly stipulated and agreed that on such appeal, said claims,. demands and counterclaims, shall not be tried anew, but on such appeal tEe judge of the Carroll Circuit Court shall review the evidence taken before said referee, and the conclusions of fact and law, and the finding of said referee, and shall make and enter of record a judgment or judgments, determining and finally adjudicating all of the claims, demands and counterclaims aforesaid, which judgment shall be final, conclusive and binding upon the estates aforesaid, the claimants aforesaid, and of all parties hereto. “ ‘In consideration of this reference and the mutual agreements herein contained, each and all of the parties hereto expressly waive the right to appeal from the order or judgments of the circuit court aforesaid. “ ‘In witness whereof, the parties have hereunto signed their names, the 10th day of August, A. D. 1905. “ ‘Executed in triplicate. “ ‘Estate of M. W. Jarboe, deceased, by Ralph P. Lozier, Admr. de bonis non, “ ‘Estate of M. W. Jarboe & Son by Ralph P. Lozier, Admr. de bonis non. “ ‘O. M. Jarboe. “ ‘H. M. Jarboe. “ ‘R. W. Yan Trump. “ ‘Yirgil Conkling. “ ‘Hugh K. Rea, Atty. for Yan Trump. “ ‘Wm. Gr. Busby, for O. M. Jarboe. and H. M. Jarboe.’ ” — 76 — Pursuant to this agreement, the probate court appointed S. J. Jones, an attorney-at-law, referee, who heard the case and made his report to the probate court as per the terms of the written agreement, first having been sworn faithfully to perform the duties of his said office. From the report of Mr. Jones, found in the record before us, it appears that he took the prescribed oath August 24, 1905; that by agreement of all the parties signing the agreement, set out above, the hearing of the matters in dispute was set for that day; that by agreement of said parties, who were all present in person and by attorneys, except H. M. Jarboe, who was present but had no attorney, the hearing of the controversy was begun;.that by agreement of all parties, a careful examination was made by the referee, and all parties in interest, of the books of account of the late firm of M. W. Jarboe & Son; that by agreement of all parties the further hearing was continued to August 25th, at which time all parties were present and further examination of said accounts was made; that by agreement the further hearing was adjourned over to August 28th, on which date all said parties again appeared and a further hearing had; that by agreement of all parties, the hearing was continued to August 29th, and was resumed on that day with all parties present; that by agreement of all parties the further hearing was continued to September 1st, and again resumed on that day with all parties present; that by agreement of all parties, the further hearing was adjourned to October 5th, and on said day again so adjourned to October 10th, and on October 10th again so adjourned to October 27th, at which date O. M. Jarboe, this appellant, requested that the further hearing be continued to October 31st, and such continuance was so had; that on October 31st, by agreement, the further hearing was continued to November 1st, and on November 1st the hearing was resumed, but — 77 — being unable to conclude it, on the application of the attorneys of O. M. Jarboe, the further hearing was continued to November 10th. From said report, it further appears that on November 2, 1905, H. Mv Jarboe served notice that he did not want to be charged with further expenses in said hearing after the date of November 1st. On November 10th, O. M. Jarboe notified the referee that he had filed a motion in the probate court to revoke the appointment of the referee, and neither O. M. Jarboe nor his attorneys appeared before the referee on that day. The proceedings on November 10, 1905, are thus detailed by the referee: “On Friday, November 10, 1905, come all of the parties in interest and their attorneys (except O. M. Jarboe and his attorneys), and the further hearing of the issues involved in this reference was resumed and the taking of testimony was on said day completed; that by agreement of all parties in interest and their respective counsel, much of the investigation and hearing heretofore made and had was in an informal manner and consisted of a detailed and exhaustive examination of the books of account of the late firm of Jarboe & Son, extending over a period of nearly thirteen years, and during said investigation and examination of said books of account, practically all of the disputed items of account were settled and agreed upon by the parties in interest and opposing counsel. “The further evidence offered by the parties will appear by the transcript thereof hereto annexed, which, with the exhibits offered and referred to in said hearing and which are attached to the transcript of the evidence, make a part of this report.” Upon November 20, 1905, the referee filed a detailed finding of facts and recommended a specific judgment as between the parties, and filed the same with the probate court. — 78 — The probate court overruled O. M. Jarboe’s motion to vacate tbe order appointing tbe referee, approved tbe report of the referee and entered its judgment in accordance with sucb report. This judgment found O. M. Jarboe liable to tbe estate of M. W. Jarboe '& Son in tbe following sums, i. e., $5000 and $6500', as money loaned or advanced to him, and in tbe further sums of $675 with interest at 6 per cent from March 2, 1903, and $576.29 with interest at 6 per cent from April 5,1905. Prom such judgment, O. M. Jarboe appealed to tbe circuit court, where be filed bis motion to dismiss said cause, assigning among other things tbe want of jurisdiction both in tbe probate court and in that court. This motion was overruled and tbe circuit court beard tbe case as per tbe stipulation first herein set out, upon tbe evidence taken by tbe referee and bis findings of facts and report thereon, and entered its judgment confirming tbe judgment recommended by the referee and entered by tbe probate court. From sucb judgment, O. M. Jarboe has appealed to this court. We have made this statement more comprehensive than would ordinarily have been necessary, but have so made it purposely in view of certain statements made in tbe reply brief filed in behalf of O. M. Jarboe, challenging statements made in respondents’ brief. Tbe foregoing fully states tbe case for all purposes suggested by tbe briefs. I. It is urged by counsel for appellant that there were no claims pending in tbe probate court by either Van Trump or H. M. Jarboe against either tbe individual or copartnership estate, and therefore there was no basis for the filing of counterclaims by tbe administrator de bonis non and that tbe judgments rendered against these two parties are null and void. These parties are lodging no complaints against sucb judgments, not having appealed. An examination of — 79 — the written agreement spread, upon the records of the prohate court, and in the record of the case in this court, shows that not only did these two parties and the administrator of the two estates admit in writing that such claims had been filed and were pending, but this appellant over his own signature admits the same thing. With this written admission in evidence it ill becomes appellant now to say that there were no such claims pending for determination and that they were not properly presented for determination. Nor does it become appellant in view of his written admissions to say that he had filed no legal demands against the two estates and thereby undertake to undermine the counterclaims upon which judgments were entered. In the contract, the appellant makes the following written admissions: “And whereas, O. M. Jarboe, surviving partner of the partnership estate of M. W. Jarboe & Son, has filed a certain claim and demand against said individual estate of M. W. Jarboe, and also against the partnership estate of M. W. Jarboe & Son; “And whereas, both of said estates have demands and counterclaims against said O. M. Jarboe, and have interposed the same as a defense against said claims and demands of said O. M. Jarboe.” In view of this admission and in view of the further admission upon his part that his said claim and demands were such as should be heard and determined, and further his agreement to have them heard and determined, appellant is hardly in position to now gainsay these solemn written admissions, made by him as a matter of record in the probate court. With this disposition of the rubbish thrown into the case, we can now take up the real issues. II. That the probate court had jurisdiction of the subject-matter and the persons there can be no doubt. Probate courts have jurisdiction to hear claims against an estate, and incidentally to hear all offsets or counter — 80 — claims in favor of the estate, where filed, as against a claim theretofore filed. [R. S. 1899, secs. 192, 193, 194 and 204; Mitchell v. Martin, Admr., 63 Mo. App. 560; Grocer Co. v. Est. of Painter, 66 Mo. App. l. c. 482.] In the latter case it is said: “The jurisdiction of the probate court to allow demands against the estate in the hands of the personal representative is defined by statute. [R. S. 1889, secs. 191, 192, et seq.] Such demands, when presented, are subject to ‘offsets and other defenses’ by the administrator, and, if exceeded by such offsets, judgment may be rendered for the administrator for the excess.” And in the Mitchell case, supra, speaking of the present administration statutes, cited above, Gill, J., after reviewing the old statute, said: “It was, we think, the manifest purpose of these amendments to the administration statute, to provide for just such a proceeding as we have here — to authorize the probate court to adjust and settle the differences between the estate and the parties presenting claims for allowance and award judgment in favor of him whose demand is the larger. While probate courts are classed as. courts of limited jurisdiction, and are authorized to do those things, or to exercise such jurisdiction only as is expressly given them by the Legislature, yet the history of such legislation shows a manifest disposition to enlarge their powers and jurisdiction, so as to clothe them with the necessary authority to fully and finally administer the estate entrusted to them. ’ ’ There can be no question, therefore, of the probate court of Carroll county having jurisdiction of all the parties, because they waived all formal notice and by writing entered their appearance, nor can there be any question of such court, under the statutes, having full and complete jurisdiction over the subject-matter, admitted by the parties to be pending before it. By their written admissions the parties have described for — 81 — this court, as well as for that court, the character' of the subject-matter then before the probate court. Of such matter the probate court had jurisdiction. Remembering then that the probate court of Carroll county had jurisdiction of the subject-matter and of the parties, we go next to the vital question in this case. III. We reach now the vital question in this case. This question is raised first by the motion of O. M. Jarboe in the probate court to set aside the order of reference. This motion is to the effect that the probate court was without power to appoint a referee or refer the cause; and further that the agreement upon which the reference was made “is contrary to law and void.” The motion does not challenge the jurisdiction of the probate court over either the parties or the subject-matter, but only goes to the power, right or jurisdiction of the court to appoint the referee and refer the cause. There are several questions involved in this contention, all of which are closely allied. They are, (a) has a probate court the power to appoint a referee; (b) can parties having pending before such court matters within its jurisdiction consent to such an appointment by the court, even though the court has no such power; (c) if such parties do consent to such an-appointment of a referee, is such referee, so named, one appointed by the court or one by párties themselves; (d) under the contract spread of record, can the parties thereto raise a question as to the right of this referee to act and the right of the probate court to enter judgment as per the agreement? We shall discuss all except the first of these questions together in this paragraph. To do so we must get at the force and effect of this contract, under the situation of the parties at that time. From the signed, admissions of the parties, as evidenced by the contract, there were pending before the probate court both claims — 82 — and counterclaims or offsets in which the several parties were interested. Of these matters and of the parties such court, a court of record, having the power to enter an order or rule of court, had jurisdiction. Under these conditions the contract or agreement was made, entered of record and made an order or rule of the court. The parties agreed upon all things to be done and how they were to be done, except the name of the referee, arbitrator or whatever such party may be called. As to who he should be was left to the judge of the court by the agreement. The judge of the court taking this, agreement as authority, designates the particular person, within the terms of the agreement. Under such facts the judge of probate might well be denominated the agent of all parties under the agreement to select a referee, arbitrator, auditor, or whatever the party be designated or called. In Davis v. Forshee, 34 Ala. l. c. 109, touching a similar question, Stone, J., has well said: “The fact that in this case the arbitrators were named and chosen by the clerk of the court, cannot alter the principle. This power was expressly conferred on him by the terms of the submission; he acted as the agreed agent of both of the parties; and we must presume, in the absence of evidence to the contrary, that the persons selected were satisfactory to the litigants.” The agreement, when summarized, says to the probate court of Carroll county, (1) claims and offsets are pending in your court in two. estates closely entwined and intermingled, (2) all parties are anxious to have such matters speedily and finally determined, (3) to that end, appearances will be and are entered and notices, and other formalities waived, (4) we have agreed to a reference in this case but have not agreed upon the person, but you, for us, may name some attorney for and in our behalf to whom we have agreed the matters may be referred, (5) “it is agreed that said probate court may and shall approve, and in all — 83 — respects confirm the report aforesaid and all parts thereof” (meaning the report of the referee), (6) each party reserves the right of appeal, hut on appeal the cause shall he heard upon the same facts and evidence as taken and found by the referee. To our mind this is a reference by agreement of parties and nothing more, with the additional agreement that after the parties through their referee reach a finding, such finding shall be entered as a judgment in the cause. Summarizing further, the parties agree in open court that their matters shall be adjusted by a disinterested lawyer, and his judgment is agreed upon as the judgment which the parties will have entered, reserving only a right of appeal. Eeference by consent is thus defined in 34 Cyc., p. 777: “The power of the court, with the consent of the parties, to refer a ease pending before it is incident to all judicial administration where the right exists to ascertain the facts as well as to pronounce the law. Except where otherwise provided by statute, the rule is that any or all the issues in any pending action may be referred by the consent of the parties, but generally the reference cannot extend to matters outside the suit.” The Cyclopedic Law Dictionary, after giving a general definition of the word “reference,” has this to say: “Generally speaking, any cause may be referred with the consent of the parties, and any cause in which there is no constitutional right to a jury trial may be referred, in the discretion of the court. ’ ’ In Newcomb v. Wood, 97 U. S. l. c. 583, Mr. Justice Swathe thus speaks: “The power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a. ease pending before it, is incident to all judicial administration, where the right exists to ascertain the facts as well as to pronounce the law. Conventio facit legem. In such an agreement there is nothing contrary to law or public policy.” — 84 — In Crocker v. Currier, 65 Wis. l. c. 665, the court said: “A question of practice will first be disposed of. On motion of the defendant the court sent the case to a referee to hear, try, and determine the issues therein. The order of reference recites that this was done with the consent of both parties given in open court, It is not denied that such consent was given. On the hearing before the referee, however, both parties claimed that the case was not referable under the statute, and that the referee had no jurisdiction to hear, try, and determine the issues. The point is not well taken for two reasons: (1) Any issue in any action may be referred if the parties consent thereto, and in this ease they did so consent, and are bound thereby.” The second reason assigned by the court was that the court had a right to refer that particular case under the statutes of the State. The first reason assigned has no reference to a statute, but is discussing what can be done by the agreement and consent of the parties. The question there ruled is, that whilst the courts within themselves may have no power or jurisdiction to refer a case, yet-when the case is pending and such court has the power to hear and determine both the facts and the law, the parties by rule or order of court may consent to a reference. Along this line is 34 Cyc., p. 792, where in stating the rule in Federal cases, it is said: “But except where authority is granted by statute, the Federal courts cannot compulsorily order a reference to hear and determine a common-law action, although they may make an order of reference where the parties consent thereto.” Nor is one precluded from thus consenting by reason of being an administrator or executor. Note 18 Cyc., p. 516, whereat it is said: “An executor or administrator has the right, both at common law and under express statutes in some jurisdictions, to submit to arbitration claims against the estate which he rep — 85 — resents. No special authority from the probate court is required for the exercise of- this right, nor is the right affected by statutory provisions authorizing a reference of disputed claims.” It is true that at common law he acted at his peril and if the award happened to be less than what could have been obtained by a suit at law, he might be liable, but the agreement to arbitrate was always good. The case of Yates v. Russell, 17 Johns. (N. Y.) 461, is very much like the one at bar in principle. In that case there was a written agreement to refer the matters in issue to three persons named and that judgment be entered upon their finding. The action was one in tort and was not referable under the New York statute pertaining to the reference of cases. As in the case at bar, the trial court in the New York' ease had jurisdiction of the parties and the subject-matter, but it would have gone beyond its power had it ordered a reference. To have ordered a reference would have been to have exceeded its powers and: jurisdiction under the laws of the State, yet the judgment upon a reference- by agreement was held to be valid. So in the case at bar, we might grant for the sake of argument that the probate court had no power to refer a cause, but when it has jurisdiction of the parties and of the subject-matter, it can enter an agreed judgment for such parties and it can enter an agreed rule of reference, by which the parties are bound. The learned chancellor in the Yates case, supra, has this to say about just such an agreement as we have before us: “There is no doubt that the case was not within the act, authorizing the court with or without the consent of parties to refer certain causes to referees; but the question is, whether either party can be permitted to allege for error a rule for reference, and a judgment on the report, when the reference and the judgment were in pursuance of his own consent in writing. It was agreed by the parties, by their — 86 — respective attorneys, that a rule should be entered to refer the cause to three referees, and that they, or any two of them, report with all convenient speed, so that judgment might be entered thereon at the next term. This agreement in writing, subscribed by the attorneys, was acted upon and carried duly into effect. It is not pretended there was any imposition or collusion in the case. It was an agreement made in good faith, and I think that g’ood faith requires that it should be truly and accurately observed. When the agreement mentioned that judgment might be entered upon the report, it meant a regular technical judgment, as is entered in other cases upon the report of referees. The words are not susceptible of any other meaning, nor ought we to impute any other meaning to the terms, especially when they are used by professional men in the ordinary course of a suit. I am, therefore, of the opinion, that a party to that agreement must be held to be concluded by it, and that he cannot now allege that the reference and judgment were not warranted by law. I think that it would be establishing a precedent that might be very pernicious in its consequences. There might be, and no doubt were, very good and sufficient reasons in the minds of the parties, for withdrawing from a public trial so painful and distressing an investigation as an action for adultery involves; and I see no good reason why the agreement of the parties to withdraw the trial from a jury to a more retired examination, before Well selected referees, should be discountenanced or rejected. The doctrine established in analogous cases, appears to warrant the entry of judgment by consent in a case like this, and I am sure that common sense does not revolt at it. In one of the resolutions of the Court of K. B., in Dormer’s case, 6 Co. Rep. 40, it was stated to be the law, that if twelve jurors be sworn and one depart, .another may be sworn by consent to supply his place, and 34 Edw. III. was referred to. So it was said that — 87 — if the parties in a real action consent to dispense with the legal qualifications of two of the four electors of the grand assize, it was good; and the court adopted the maxim that consensus tollit errorem; ‘and divers other cases were put,’ said Lord Coke, ‘where consent of the parties shall alter the form and course of the law.’ So, in Turner v. Barnaby, 12 Mod. 564, the attorneys of the parties named the jurors to be returned by the sheriff, and being by consent, it was held good; and the like assent, in a like case, was held valid in 6 R. II [Challenge 102, cited in Viner, tit. Error, Z. 6, 5.] And in a writ of right, according to Dodderidge., J. (Palm. Rep. 100), the parties may agree that the trial be by twelve, common jurors, and not by the grand assize of sixteen jurors, which is the number established by law in that action. These cases, which I have referred to, are taken principally from the ancient law, and they are all cases in which the consent of parties was applied to vary the regular and established mode of trial by jury. To take another juror, without necessity, after the twelve have been sworn, or to dispense with the legal qualifications of jurors, or to allow the parties to select the jury, or to reduce the grand assize from sixteen to twelve men, is a stretch of power almost equal to the taking of three referees, instead of the twelve jurors; yet all those acts have been held good, when done by consent, and that too in ancient times, when the forms of law were adhered to with great strictness, and when the courts were not much disposed to indulge in very liberal and enlightened views of justice.” When judgment is entered under such an agreement it is considered equivalent to a judgment by confession. The agreement in Yates v. Russell is in substance like the one in the case at bar. Discussing the judgment in the Yates case, in Camp et al. v. Root, 18 Johns. (N. Y.) l. c. 23, the court said: “In the case of Yates v. Russell, in the Court of Errors, it was — 88 — expressly stipulated' by the attorney for the defendant, that if the referees reported against him, judgment should be entered against him for the sum so reported. And that was .considered equivalent to a plea of confession for that amount.” In Farrington v. Hamblin, 12 Wend. (N. Y.) l. c. 213, Savage, C. J., in discussing a certain agreement to arbitrate and enter judgment upon the award, says: “This clearly was not a reference under the statute; no rule was entered referring the cause and appointing referees. The arbitrators were not officers of the court, but judges of the parties’ own choosing. The court had no control over them, 1 Johns. 315, 492; 9 Cow. 136; and but for the stipulation to enter judgment, the court would not entertain any motion in relation to the subject. But it may be said here as it was said- in Yates v. Russell, 17 Johns. 465: the question is whether either party can be permitted to allege for error the entry of a rule for judgment, when that judgment is in pursuance of his own consent in writing, and under his seal. It was there held that the parties were concluded by their agreement, and should not be permitted to allege that the reference and judg"ment were not warranted by law. The only difference between that case and this is, that there a rule was entered referring the cause, and here there was not: the submission authorized only the entry of the judgment on the award, Ih that case, however, as in this, all depended upon the agreement of the parties; that case was not referrible; the whole proceeding, therefore, would have been irregular but for the maxim consensus tollit errorem. In this case there might have .been a long account, but there was no rule to refer; and the rule for judgment is sustained by the same maxim which sustained the rules in that case. I am therefore of the opinion that the judgment, being founded upon the consent of the defendant appearing upon the record, is valid.” — 89 — The case of Heckers v. Fowler, 2 Wall. 123, is in point. In the trial of that case in the U. S. Circuit Court by consent of parties the cause was sent to referees, upon whose report the clerk of said court entered up judgment, from which an appeal was taken to the Supreme Court. It was there urged that there was no statute authorizing such a reference, and there Avas not, but the judgment was affirmed. Among other things the court said: “Practice of referring pending actions under a rule of court, by consent of parties, was well known at common law, and the report of the referees appointed, when regularly made to the court, pursuant to the rule of reference and duly accepted, is now universally regarded in the State courts as the proper foundation of judgment. ’ ’ Among the eases cited is Yates v. Russell, supra. For other and further authorities along the same line as to consent references, see 24 Am. and Eng. Ency. Law (2 Ed.), p. 220. The appellant in this cause, after having appeared day after day before the referee and after having been, no doubt, convinced from an examination of the firm books, that a finding must go against him, on the last day served notice that he had filed a motion to vacate the order of reference. Not only so, but from the record it would appear that he had changed counsel. We hardly think the probate court was in error when it refused to sustain such motion. The universal modern rule seems to be that where a consent reference is had by an order or rule of court, neither party can revoke the reference, nor his consent to the reference. [Robinson v. Nelson, 43 Pac. 64; Dexter v. Young, 40 N. H. 130; Ferris v. Munn, 22 N. J. L. 161; Keystone Driller Co. v. Worth, 117 N. C. 515; Smith v. Hicks, 108 N. C. 248; Jeffers v. Hazen, 69 Vt. 456; Sanders v. Fire Dist., 70 Vt. 561.] Michigan has a statute which provides that a cause may “be referred to such person or such three persons — 90 — as may be agreed upon by the parties, or appointed by the court in case the parties fail to agree.” In Shepherd v. Shepherd’s Estate, 108 Mich. 82, the lower court had appointed two referees instead of one or three as provided. This point was made in the Supreme Court and the court there said: “We think that, if the statute should be so construed, defendant is not in a position to raise this question. The appointment of two referees was agreed upon, and the parties appeared before them, and submitted all their matters, and defendant for the first time raised the question when the order of confirmation was asked in the circuit court. Objections to the form of the order of reference or to the appointment of referees have been deemed to be waived by proceeding with the reference; and so the objection that the court had no jurisdiction to make the order of reference is waived in like manner.” So too it has been held that the submission of a matter to a referee is a waiver of formal defects in the writ and in the service thereof. [Hix v. Sumner, 50 Me. 290, and cases cited therein.] In the case at bar the probate court having jurisdiction of the persons and the subject-matter, the only irregularity, if such it be, was in permitting the parties to ascertain what judgment was to be entered through a referee. That the parties could have gone into that court and filed a written stipulation or agreement for a judgment and had a judgment entered without trial can hardly be questioned. In such case there would be a waiver of trial, either by the court or jury. That such a waiver could be made and is continuously being made in such cases we think dear. The agreement for the judgment at bar waives nothing more. Again the error, if error it be, is only one as to a matter of practice, i. e., the means of reaching the result to be incorporated in the judgment. In this case the maxim “consensus facit legem” has peculiar — 91 — application. The probate court had the power to hear the evidence and consider the law of the cases pending before it. Having such power it could by consent of parties enter a rule or order of reference. As said in the Alabama case, supra, the mere fact that the parties agreed upon leaving the selection of the referee to the judge of the court does not change the situation. The parties, instead of describing the character of the referee in their agreement, might have gone further and designated him eo nomine. But according to the Alabama case, supra, the result is the same in a consent reference. The parties having agreed to. a reference and appeared before the referee cannot revoke the same and are estopped from saying that the case was not referable. So that without passing at this point upon the general right of a probate court to appoint a referee, the probate court was not in error in entering the judgment as it did. The action of the circuit court on appeal therefrom we consider next. IV. In the circuit court the jurisdiction of both courts was attacked by motion of the appellant appearing specially for that purpose. What we have said in the preceding paragraph practically disposes of all the contentions here. We hold that the judgment in the probate court is an agreed judgment, or one entered by consent, and none of the parties are in position to question the same further than by their agreement permitted. By this agreement either party was allowed the right to an appeal to the circuit court, but it was agreed that in event of an appeal the cause should there be submitted to that court upon the evidence taken before the referee. Such an agreement is good and is binding upon the parties. It is not an uncommon thing for parties to an action in the circuit court to agree upon the course and manner. of the submission and the things to be considered in the submission. — 92 — It is evident from the agreement forming the basis of this consent reference, that it was the purpose of the parties to settle every matter connected with these two closely entwined estates and put a rest to all controversies. This the decree nisi has done. This the parties wanted done. This the parties solemnly consented in writing should be done. And this, if rightfully and lawfully done, should not be disturbed. We think there is nothing in the numerous .contentions of appellant to justify us in opening up these two estates by reversing this judgment. The case here is but a struggle upon the part of appellant to escape the force and effect of his own agreement for a rule or order of reference, and the reference itself, after he discovered from the books that he had no standing in his alleged claims. It appears from the referee’s report thus: ‘ ‘ That by agreement of all parties in interest and their respective counsel, much of the investigation and hearing heretofore made and had was in an informal manner and consisted of a detailed and exhaustive examination of the books of account of the late firm of Jarboe & Son, extending over a. period of nearly thirteen years, and during said investigation and examination of said books of account, practically all of the disputed items of account were settled and agreed upon by the parties in interest and opposing counsel.” From this may be gathered the reason of appellant in changing counsel and attacking his own solemn agreement. It appears that he and his first counsel and the other parties agreed upon the disputed items, which meant that there could be but one result of the reference, and that a judgment against him. Then it was that he sought other counsel to escape the force of his own agreement and of his own conduct. Good faith and fair dealing will not permit such a course, and this court will not sanction such a course of conduct. — 93 — V. In division the writer expressed no opinion as to the legal right of a prohate conrt to appoint a referee in cases wherein a reference eonld he had in the circuit court. Our brother Woodson there expressed the idea that such power existed in the probate court. We still prefer to express no opinion as to a compulsory reference by a probate court, inasmuch as what we have said in preceding paragraphs determines the ease. We can see where much can be said upon this question. Whilst it is true that the probate courts of this State are courts of statutory power, yet in the exercise of the powers granted, they resort to both common law and equitable rules in the disposition of matters before them. Taking of accounts have long since been recognized as matters in equity, yet under the law partnership estates which involve or may involve an accounting between partners are confided to the probate court, with full power to administer and settle. The statute allows offsets to claims to be filed and these may be such as involve long accounts or even an accounting, yet of these things either in individual or partnership estates the prohate court has jurisdiction, and it may well be considered a substantial query as to whether or not in exercising the incidental powers required to determine the questions confided to the probate court by the law, it like other courts may not call to its aid the usual instrumentalities used by other courts in reaching conclusions upon the same class of investigations and in proper cases order a reference. But as said before, with the views we have upon the questions discussed, a decision of this point is not necessary, and we leave the question of the power of a probate court to order a reference with-, out consent, to a case wherein such question is of more vital interest than in the one at bar. For the reasons in other paragraphs of this opinion discussed, it follows that the judgment nisi should be affirmed and it is so ordered. Burgess, Gantt and — 94 — Lamm, JJ., concur. Woodson, J., concurs in separate opinion in which he reiterates his views expressed in: Division to the effect that the probate court had the legal right, without consent of parties, to refer such a cause. Valliant, G. J., dissents in opinion filed, in which Fox, J., concurs.