
    Wolf v. Banks.
    1. Probate Court : No power to vacate judgment after lapse of term.
    
    An order of the prohate court setting aside a judgment of allowance at a previous term is null and void, and may he quashed in the circuit court on certiorari, hut not hy appeal.
    2. Administrator : Cannot speculate on the estate.
    
    An administrator is a trustee and cannot speculate on claims against the estate. I-Ie will he allowed only what he pays for them and interest.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypekt, Circuit Judge.
    
      Lyles & Harris, for appellants.
    The evidence shows clearly that the claim was allowed in= due time, and was not barred.
    The order of the probate court, at a subsequent term, setting aside the allowance of the claim at a preceding term,, was null and void, and the appeal should have been dismissed. Gossett v. Biscoe, 12 Arle., 95; McMorrin v. Overhalt, 14 Arle., 246.
    
    The probate court properly allowed and classed the duplicate claim, upon proof of loss of the original. There is no particular time prescribed for the classification of claims.
    
      Malone & Watson, of Memphis, and L. A. Pindall, for appellees.
    The court below found, sitting as a jury, that the claim was barred, and this court will npt disturb the finding. 25 Arle., 89; 34 lb., 221.
    
    The proof fails to show that the claim was presented for allowance in time. Wolf failed to testify that it was, and when a man has an opportunity to testify as to facts in dispute, and which are peculiarly within his own knowledge, a failure to tell what he knows is not only a circumstance, but a strong presumption against the claim of the party. 4 Heisle., (Tenn.), 480; 32 Arle., 346; Wharton on Bvi denee, sec. 1266.
    
    Wolf had funds in his hands belonging to the estate, when he purchased the claim from Lowenstein, and hence-was a trustee, and can recover no more than he paid. West v. Waddell, 33 Arle., 587-8; Gollins v. Warner, 32 Arle., 91.
    
   English, C. J.

On the twenty-ninth of November,1876, letters of administration upon the estate of Francis Moore, deceased, were granted to B. D. Hodges, by the Probate-Court of Lee county.

On the eighth of December 1879, when it seems Hodges-had ceased to be administrator, and C. H. Banks had been appointed administrator de bonis non of said estate, M.. Wolf, a merchant of Memphis, Tennessee, presented to said probate court for allowance, an itemized open account against the estate of Moore for merchandise, money, etc., amounting to $ 1,229.12.

The demand appears to have been sworn to in the usual probate form by Wolf, at Memphis, on the twenty-fourth •of November,1879, before a commissioner of deeds, &c,; for Arkansas, and filed for allowance fifth óf December follow-in o*.

At the foot of the account was the following:—

‘¿Duplicate of account made before this approved.

B. D. Hodges, Adirír.

“Nov. 26th, 1879.”

The eighth of' December, 1879, the day on which the .account was presented to the probate court for allowance, was a day of the regular November term, 1879. The court-rendered judgment in favor of Wolf for the amount of the account, and classed it in the fourth class of claims against the estate. The record entry of the judgment recites that it was represented to the court that a duplicate of the account properly authenticated was presented to the administrator (Hodges), and by him allowed prior to the expiration of one year after the date of bis letters; hence the court treated the demand as not barred by the statute of non-claim.

It seems that Banks, the administrator de bonis non, .appealed from this judgment, but there was no entry of the appeal on the record of the probate court.

On the fifth of January, 1880, a day of the regular November term, 1879, of the probate court, an attorney for the heirs of Francis Moore deceased, moved that the judgment ■of allowance be set aside, with leave to file exceptions to the allowance of the claim.

Which motion was ordered to be filed, to be acted on at the February term, 1880; but no action appears to have been taken on the motion at that term.

At the May term, 1880, the motion was taken up and heard, and the judgment of allowance entered at the November term, 1879, set aside and held for naught, and the claim ■disallowed. From this judgment, Wolf appealed to the ■circuit court,

In the circuit court, Wolf filed a motion to dismiss the appeal of Banks ; and that on his own appeal the order of the probate court setting aside the judgment of allowance, and disallowing the claim be declared null and void, and the court overruled the motion.

It was then agreed by the parties that Banks had taken an appeal from the judgment of allowance, though the probate record had failed to show it, and the cause was submitted -to the court on depositions taken by the parties, and the ■court found that the claim Avas barred by the statute of non ■claim, and gave judgment disallowing it, and refused Wolf -a new trial, and he took a bill of exceptions and appealed to this court.

I. The probate court liad no power at the May term ■.set aside the judgment of allowance rendered by it at the previous November term, and the order setting it aside Avas . . 7 null and void, and no appeal Avould lie from it, but it might have been quashed by the circuit court on certiorari. Cossitt et al. v. Biscoe, 12 Ark., 95.

The case was tried de novo, hoivever, by agreement of The parties, on the appeal of Banks from the original judgment of allowance.

II. It is probable from all the evidence that the account2 ■of Wolf against the estate of Moore Avas originally a just . ■claim, and that he presented it,properly sworn to, within •statute period of non-claim, to Hodges, the first administrator, for alloAvance, and that he indorsed his allowance, and returned it to Wolfe, and that it Avas perhaps lost or mislaid ■and hence a duplicate Avas presented to the probate court for iilloAArance. The evidence discloses an ugly feature in the case, which perhaps induced his Honor, the circuit judge, to reject, the whole claim as bai'red.

After the death of Moore, Hodges administered oxx his-estate in Lee county, where it seems he had x’esided, and Wolfe also took out letter's of administx'ation in Shelby county Tennessee, where Moore left assets.

Wolf became insolvent, and assigned all his choses inaction, and among them his account against the estate of' Moore, to Loxvenstein of Memphis, and obtained a discharge-in bankruptcy.

After his discharge, and when he was still the administx-ator of Moore, and had assets of the estate in his hands, if he had not wasted them, he purchased, in November, 1878,. of Lowenstien, through one Warner, the account against the-estate of Moore, paying not exceeding $100 therefor, and: afterwards proceeded to have the entire claim, ($1,229.12),. probated agaixxstthe estate of Moore in Arkansas.

He was, himself, a trustee of part of Moore’s estate, and not iix a coxxditioxx to speculate upoix claims against it. Trimble et al. v. James ad. 40 Ark., 393.

The judgment of the court below rejecting the whole claim: must be reversed, and a judgmeixt will be entered hex-e,. allowing the claim for $100 with interest from the last of November, 1878, to be classed in the foux'th class of claims-against the estate of Moore.

This judgment will be certified to the court below, axxd by it to the probate coux't.  