not at all conducive, and of itself is not sufficient for a conviction."

This instruction is erroneous because it attempts to advise the jury what inferences they may draw from a certain part of the evidence. Our Constitution forbids trial judge from instructing juries on matters of fact, Blankenship v. State, 55 Ark. 244; Wiley v. State, 92 Ark. 586.

(5) The court also refused to give the following instruction asked by appellant:

"The court instructs the jury that the law presumes in favor of innocence, and of a good motive rather than a bad one, and the burden is not on defendant to show he had no criminal intent in keeping the ring after he found it, but it devolves upon the State to prove he had such criminal intent."

The instruction is erroneous because its effect would be to divert the minds of the jury from the intent involved in entering the house and taking the ring, to the intent appellant had in keeping the ring. This instruction, if given, would have placed upon the State the burden of proving that appellant formed a criminal intent in his mind to keep the ring after he obtained possession thereof. The State's burden under the charge of burglary and larceny was to show the criminal intent of appellant at the time of entering the house and not thereafter.

No error appearing in the record, the judgment is affirmed.

ARMSTRONG V. LAWSON, ADMINISTRATOR.

Opinion delivered March 12, 1917.

APPEAL AND ERROR-APPEAL FROM PROBATE COURT-ORDER OF DISMISSAL. The action of the circuit court in dismissing an appeal from the probate court held proper where the record failed to disclose that appellant, who had made himself a party in the probate court, was either a creditor or distributee of the estate involved.

Appeal from Cross Circuit Court; W. J. Driver, Judge; affirmed.

J. C. Brookfield, for appellant.

1. No bill of exceptions or motion for new trial was necessary. Where the error appears of record in the judgment neither is necessary, and this court will reverse. 125 Ark. 305; 46 Ark. 17, 21, 468, 474. Appellant did everything required by the Acts 1909, page 957. The cause should have been reinstated and the appeal allowed, upon the showing made.

S. R. Simpson, for appellee.

1. There is nothing before this court. Appellant was not a party and could not appeal. 123 Ark. 61; 68 Id. 492; Kirby's Digest, § 140; Acts 1909, p. 957; 119 Ark. 185; 105 Id. 301; 121 Id. 448; 123 Id. 61; 99 Id. 56.

2. No bill of exceptions was filed and no motion for new trial was filed. It is not shown that appellant was an interested party. He is a stranger to the suit. Kirby's Digest, § 1351; 123 Ark. 61; 68 Id. 492; 99 Id. 56; 119 Id. 185; 123 Id. 61.

MCCULLOCH, C. J. The appellant, W. W. Armstrong, undertook to appeal from two judgments of the probate court of Cross County, one being a judgment of allowance of a claim against the estate of appellee's decedent, and the other a judgment directing the sale of real estate of the decedent by said administrator. The circuit court' dismissed both of said appeals, and an appeal has been prosecuted to this court from the order of dismissal. The transcript of the record sent up from the probate court shows that the appellant appeared in that court and had himself made a party to the proceedings on the part of the administrator to procure the order of sale, and the record shows that the probate court granted the appeal from the order of sale, and also from the order allowing the claim against the estate. Appellant filed an affidavit for appeal in the form prescribed by the statute. It does not, however, appear in the record, either in the order making appellant a party, or in the affidavit for appeal, that he was interested in the estate as a creditor or distributee. The record of the circuit court shows that the administrator filed a motion to dismiss the appeals, but the motion itself does not appear in the record. The court made an order dismissing the appeals and a few days later, during the same term, appellant filed his motion for reinstatement of the cause, which was overruled, and appellant saved his exceptions and prayed an appeal to the Supreme Court, which was granted and time was allowed for filing a bill of exceptions, but no bill of exceptions was in fact filed.

In the state of the record just prescribed we are compelled to indulge the presumption that the court's ruling in dismissing the appeals was based upon facts which justified it. Billingsley v. Adams, 102 Ark. 511.

It does not appear affirmatively anywhere in the record that appellant was interested in the estate, and appellee's motion to dismiss may have presented that or some other issue of fact for the consideration of the court concerning the interest of appellant in the proceedings and the right to prosecute an appeal. This presumption is strengthened by the fact that the court gave time (120 days) in which to file a bill of exceptions. It is true that the court at first entered an order of dismissal reciting that the motion to dismiss was heard upon the face of the record, but that order was set aside at the instance of appellant and the last order of dismissal contains no such recital, and it is fairly inferable that the court on the last presentation of the motion heard the matter on something more than the face of the record itself.

There being nothing to overcome the presumption of regularity and correctness of the court's order of dismissal, it follows that the judgment must be affirmed, and it is so ordered.

1.

ARKANSAS VALLEY TRUST COMPANY V. YOUNG.

Opinion delivered March 12, 1917.

ADMINISTRATION-AGREEMENT OF DECEASED TO CONVEY LANDPOWER OF PROBATE COURT TO ORDER A CONVEYANCE. -Kirby's Digest, § 213, gives an administrator, with the approval of the probate court, authority to convey land belonging to deceased to a third party in pursuance of an agreement between deceased and the third party, where the administrator is satisfied that payment has been made therefor according to the contract. The statute merely grants to the administrator this discretion, and does not confer upon the probate court jurisdiction to enforce the equitable remedy of specific performance.

2.

ADMINISTRATION-AUTHORITY OF PROBATE COURTS. - Probate courts are the guardians of the estates of deceased persons, and have the custody of such estates for the purpose of settling the debts and performing the contracts entered into by the decedent. It is their duty to administer these estates in the most expeditious and frugal manner consistent with the rights and interests of all concerned. Kirby's Digest, § 213, gives a more direct and expeditious relief than that under the right of specific performance in proceedings in chancery.

3.

4.

5.

ADMINISTRATION-AGREEMENT TO CONVEY LAND BY DECEASEDORAL AGREEMENT. - Deceased agreed orally to convey certain land to one A. but died before making the conveyance. Held, under Kirby's Digest, § 213, the administrator may make a valid conveyance of the same to A. with the approval of the probate court.

ADMINISTRATION-STATUTE OF FRAUDS.- Where the personal representative of a decedent cannot plead the statute of frauds, a judgment creditor cannot do so.

ADMINISTRATION CONTRACT TO CONVEY LAND-DEED BY ADMINISTRATOR. Deceased was indebted to one A. and in order to pay the debt agreed to convey certain lands to him, A. in turn surrendering certain securities which he held as collateral. Before the deed was executed deceased died. Held, the facts presented a case for the application of Kirby's Digest, § 213, and that a conveyance by the administrator to A., under authority of the probate court, was valid.

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

lant.

Read & McDonough and Kimpel & Daily, for appel

1. Probate courts are not courts of equity-they have no chancery jurisdiction to enforce the specific performance of contracts. Any authority to justify the order here must be found under Kirby's Digest, § 213, Acts 1859, No. 181. This is a special power and must be exercised as such. Courts of chancery do, under certain circumstances, decree specific performance of oral contracts for the conveyance of real property. This is an equitable remedy and is exercised only by courts of chancery, and by them with caution. 39 Ark. 429.

2. This statute has been on the books since 1859. The probate court is one of limited jurisdiction, and the Legislature could not authorize an administrator to make a conveyance. The order was void. 50 Ark. Law Rep. 90.

It was never intended to vest in probate courts jurisdiction to enforce or decree specific performance. Rev. St., chap. 23, § 1; Kirby's Digest, §§ 213, 214, 209, 212,

etc.

3. The proof was not sufficient to authorize specific performance by a court of chancery on the ground of partial performance. 41 Ark. 97.

John H. Vaughan, Geo. F. Youmans and Nagel & Kirby, of St. Louis, Mo., for appellees.

1. The estate was solvent as found by the probate court.

The probate court had jurisdiction to make the order under the act of February 21, 1859, Kirby's Digest, 213, 214. The homestead is not involved here as in 50 Ark. Law Rep. 90. This is the only case construing this act. The contract here is one that could have been enforced against Young specifically if he had lived. 66 Ark. 333; 50 S. W. 695.

Read & McDonough and Kimpel & Daily, for appellants, in reply.

1. Probate court had no jurisdiction to make the order. There was no written contract. In 123 Ark. 189 this court did not decide that the probate court had equitable jurisdiction to decree specific performance of an oral contract upon proof of part performance.