¶1The appeal is taken from a decree of the probate court to complete the minute entries and decrees in the matter of the sale of the land belonging to the estate of Jeremiah Holcombe. The probate judge being incompetent under section 635 of the Bevised Code, the application was heard before the' register in chancery.The application on which the decree was rendered was-made by the appellee, who was the purchaser. He alleged only that the papers and records in the cause were lost or destroyed, and he asked that others might be substituted. The proof shows very clearly that none of the records had been lost or destroyed; and while it establishes the exist*731ence of some of the papers described, it stops short of showing their loss or destruction. "While they seem to be missing, no witness states that they have been diligently searched for in the places where they would most likely be found.
¶2The evidence tends very strongly to show that the probate judge omitted to make the necessary entries and decrees at the time they should have been made, and the decree appealed from was rendered under that conviction. We do not think an application to substitute lost records, under section 652 of the Bevised Code, will sustain a decree rendered under section 796 to complete the minute entries and decrees. There is a fatal variance between the allegations and the proof.
¶3We decide that the register in chancery is authorized by section 2302 of the Bevised Code to act in the place of the probate judge in such a case as this. He would have had jurisdiction to hear and determine the original cause, and we think the spirit of the law embraces this as well.
¶4The decree is reversed and the cause remanded.