¶1Opinion by
¶2By the payment of the money into the hands of the stakeholder, in trust, the parties to the controversy submitted to the court the determination of the ownership of the sum of $483.10, claimed by the administrator of the estate of Aaron W. Eyer, on the one hand, and the administratrices of the estate of Mary Eyer- on the other. The court below has reached the conclusion that the money belongs to the latter. We do not purpose rehearsing the facts and figures here. We have examined both carefully, and are convinced that upon the merits of the controversy, the learned judge of the court below has put his decision on solid ground. Indeed, the argument for the appellant does not make any formidable attack upon the decree because of its want of equity as between the parties, but seeks rather to overthrow it on grounds more or less technical. The first objection is based upon the condition of the pleadings and proof. There was a petition by the now appellant for a rule on the trustee to pay. To this there was an answer, signed by two respondents, but sworn to only by the husband of one of them, who had, however, the fullest knowledge of the matters involved. To this a replication was filed. Strictly, the issue should have gone to an examiner to take testimony, or in some other form have been supported by evidence. It seems to have been argued upon petition, answer and replication, the petitioner not objecting. Surely this must be regarded as ara argument by consent of the parties upon bill and answer, whereby the allegations of the answer are admitted, else the court had no facts undenied or ascertained upon which to found a decree, and the order first made, which the appellant would have reinstated, would be as barren of support as the final order, which the appellant desires to overthrow. It may be, however, that proofs were before the court as alleged by the appellee. Taking the *476record as we find it, we are not impelled to disturb the decree ■made.
¶3The court below made an order on May 18, 1899, awarding the fund to the present appellant. On June 24,1899, an order of stay was entered, sur application for reargument. On July 22, 1899, the opinion of the court below was filed, the order of May 18, 1899 revoked, and the rule for payment discharged. The argument is that the first order was reversed after the term .at which it was made. This does not seem to be borne out by the facts. The May term commenced upon the third Monday, which was May 15, 1899. The next term commenced the third Monday of September. The proceedings were thus all within the period of the May term. We are unanimously of opinion that the action of the court below was without error.
¶4Decree affirmed.