¶1 It may be that an action may be maintained for a breach of the agreement to pay $600 for forbearing to resist the probate of the will, but the idea of incorporating the agreement into the will as a part of it, is novel and absurd. Nor had the Probate Court jurisdiction to hear and determine a complaint for that cause. The Probate Court •ought therefore to have dismissed that'part of the complaint, and proceeded to consider the claim for the legacy of which it had jurisdiction. But instead' of that, it proceeded to give judgment for the legacy and for the $600 besides.
¶2 The record does not state what issues were sent to the Superior Court in term time, but we suppose it was the question of jurisdiction of the Probate Court. Whatever it was, it ought to have been passed upon and then sent back to the Probate Court with instruction to proceed to decree as to the legacy"; but instead of that His Honor proceeded to de-decree as to the legacy. This was error.
¶3 Error.
¶4 Per Curiam. Judgment reversed.