(after stating the facts). 1. The appellants contend that the allowance of $264 for funeral expenses, monument, etc., was not a proper charge on the estate of S. Alice Cox, deceased, and that the court erred in not setting aside such allowance. Conceding, without deciding, that this claim was not a proper charge against the estate, under the evidence there was no fraud practiced upon the court in the procurement of the judgment. The fraud, if any, consisted in the original cause of action only. It consisted in the appellee's presenting a claim for amounts which were false amounts, alleged to have been paid out by him for the various items mentioned in his account. These items might have been contested before the probate court and defeated there, or, if not, then by appeal. The question as to whether they were legal charges against the estate was one of law for the court to determine. It was not a fraud on the court to present such claim for allowance. A fraud that entitles a party to impeach a judgment “must be a fraud extrinsic of the matter tried in the cause. It must not consist of any false or fraudulent act or testimony, the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment that is thus assailed. It must be a fraud practiced upon the court in the procurement of the judgment.” Bank of Pine Bluff v. Levi, 90 Ark. 166, and cases there cited. The court therefore did not err in refusing to set aside the allowance of $264, and its judgment as to this is affirmed.
2. The testimony of the appellee shows that he purchased in 1879 what is known as the Abernathy place. He and his deceased wife had decided before that time that they would raise no family; that' if he died first she would be left alone, and if she died first he would be left alone; so she wanted the real estate made in her name to prevent having any trouble if she was left alone. She suggested that he keep an account of improvements, and that such account, with 10 per cent, interest added, be presented to the probate court against her estate, and he would be repossessed of the land. He exe*309euted notes for the purchase money of $150 and $200, respectively, which were paid in part by doctor bills, and when the notes were paid the deeds were executed to his wife. He did not intend by this to make his wife a gift or advancement, and she so understood it. He bought the other lands, and in order to convey the title to Mrs. Cox he and she deeded them to a third party, who, in turn, deeded them back to Mrs. Cox.
The lots in Mammoth Spring were bought by Mrs. Cox with money collected from his book accounts. Mrs. Cox assisted him in practicing medicine. If he was absent, she would prescribe for any one coming in, and in the sickly part of the year she did considerable riding, visiting patients he could not visit. Where she was preferred in obstetrics, she would go. In the fall her accounts were added to his, but she didn’t earn more than 50 per cent, of expenses.
He testified, on cross examination, that his contention now was that he bought all the land in controversy, and had the legal title thereto conveyed to his wife, not as a gift or advancement, but that in 1904, in a suit he brought against the collateral heirs of Mrs. Cox, he alleged in his complaint that the reason he had these deeds made to her was that she had a brother and sisters, and that at her death he wanted the land to go to them, but stated that the first reason was the true reason why he had the titles conveyed to her.
He stated that the advantage he derived from constituting his wife his trustee to hold the lands in controversy for him was “a little peace and quiet at home” by having her feel sure she would not lose the land. “We wanted peace and harmony, and I wanted the deed in her name because she wanted it.”
In 1904 he brought suit against the collateral heirs of Mrs. Cox, praying that the deeds to her for the land in controversy be cancelled and title be vested in him; that he gave notice to take depositions April 28, 1904, at which time plaintiff, Mrs. Hall, and her attorney appeared, and he caused to be served by David L. King, his attorney, a notice on Mrs. Hall and her attorney that he would abandon and dismiss the suit, which he did. But afterwards, on the 22d day of March, 1905, he filed his demand against the estate of deceased for $1,210 for improvements put on the land in controversy, making an affidavit at the time that the services charged were *310actually rendered; that the charge did not exceed the amount allowed by law for similar services, and that the sum of $1,210 against the estate was then due and unpaid, and that, although the land was only held in trust by the deceased for his benefit, he filed that account aganist his wife’s estate because she agreed to pay it, and he was to keep such account and present it to the probate court that he might get the legal title to his land again at the end of her trust. He stated that, although his wife only held the land in trust for him, she became responsible to him for the improvements he placed upon his own land by agreement and special contract between himself and his wife that he was to keep an account of all expenditures on the place that he might probate a claim and obtain legal possession of his land in the event that she died first. The rents and profits were to go to both of them, and it was necessary that these improvements be made to enhance the rental value of the land.
He further testified that on the 19th day of March, 1907, he filed his petition under oath, alleging that that sum of $1,456 had been allowed by the probate court of the northern district of Sharp County against the estate of S. Alice Cox, in his favor, and alleging that there were several tracts of land belonging to said estate which he desired sold to pay said debts; that he signed said petition and made oath before- the clerk of said court that the facts stated in the petition- were true; that he obtained an order to sell the lands on that petition, and offered them for sale; that when he swore in his application for letters of administration that the income of his wife’s estate was $150 annually, he had reference to the income that arose from the land and stock she held a legal right to.
On redirect examination, he testified that the reason he dismissed his suit brought in chancery to have the legal title to some of the land in controversy divested out of the collateral heirs of Mrs. Cox and vested in himself was that he began that suit to get possession of his lands, having no thought in the least of any body objecting or interfering with his course, but when he saw them come with their attorney to oppose him he concluded the better plan was to dismiss that case and proceed as he had before intended by administering on the estate.
*311He further stated that the reason why he did not, in his administration, charge himself with rents, profits and income of the land was that the lands were his, and he supposed the proceeds of them were his. He commenced his administration on the 3d day of June, 1903, and filed suit in the chancery court the last of that year or first of 1904, and stated that he abandoned the contract with his wife as to the account and administration sale which he was to enforce, in case she died first, because he apprehended no trouble from any of the plaintiffs, and was told that the best and cheapest way to get title to the land was in chancery. He and Mrs. Cox knew she could make a will devising the land to him, which would take effect at her death, but he preferred to administer, as he would have to go through probate court any way.
The plaintiffs introduced in evidence warranty deed from Abernathy and wife, dated January 8, 1883, conveying to deceased S. A. Cox, 164 acres of land lying in Sharp County, and warranty deeds from Kufall, dated December 24, 1898, conveying certain land in Fulton County; also warranty deed of Mammoth Spring Improvement & Water Power Company, conveying to S. A. Cox the lots in Mammoth Spring. These deeds conveyed the lands in controversy.
“When a husband purchases property, and has it conveyed to his wife, or expends money in improving her property, the sum so expended will be presumed to be a gift. The law will not imply a promise on her part to repay the amount, nor will it raise a presumption that he intended thereby to create a trust in his own favor. Neither will there be a presumption that he intended thereby to repay a debt which he owed his wife.” Hamby v. Brooks, 86 Ark. 448, 451.
Where a husband purchases land with his own money and takes the title in his wife’s name, the presumption is that it was an advancement or a gift. Milner v. Freeman, 40 Ark. 62; Bogy v. Roberts, 48 Ark. 17; Chambers v. Michael, 71 Ark. 377.
In Johnson v. Richardson, 44 Ark. 365, speaking of the character of evidence required to prove a resulting trust, the court said: “To establish a resulting trust by parol, the evidence must be full, clear and convincing.” This rule has often been announced by this court. Tillar v. Henry, 75 Ark. *312446; Camden v. Bennett, 54 Ark. 115; Crow v. Watkins, 84 Ark. 169.
As early as 1850, in Crittenden v. Woodruff, 11 Ark. 82, this court announced that, although the authorities show that in a court of equity it is admissible to prove a trust in opposition to a deed or other written instrument, they are fully up to and distinct that the evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact. In Crow v. Watkins, supra, the court announced that the evidence “must be of such clearness and certainty of purpose as to leave no well-founded doubt upon the subject.”
It could serve no useful purpose to discuss the evidence in detail upon which the court declared a trust in favor of the appellee. It speaks for itself. Suffice it to say, it does not, in our opinion, meet the requirements of the rule above announced in any particular. The testimony is far from being satisfactory and convincing. The appellee assumed contradictory attitudes in reference to the lands in controversy. At one time he brings suit and in his complaint treated it as an absolute property in his wife, and then again he files an account for improvements máde upon the property as the absolute property of the estate of his deceased wife, and then in his first answer in the present case he admits that at the time of his wife’s death she held the legal title to all the lands and prayed for curtesy therein, and not until the amended answer and cross complaint was filed, seven years and seven months after the death of his wife, does he set up his present contention that the lands were held by her in trust for him. It was twenty-seven years from the date of the deed to one tract of land, nineteen years from the purchase of another tract, and twelve years from the purchase of another tract before any intimation is given that the lands were held in trust.
In Johnson v. Richardson, supra, it is said: “It is safe after the lapse of a long time to let instruments of writing speak for themselves and to gather the meaning of the parties from their contents, rather than from the uncertain memory of witnesses.”
The testimony, in our opinion, is not of that character to warrant the overturning of the deeds of Mrs. S. A. Cox to the lands in controversy and declaring that, instead of *313holding the absolute title in her own right, she was a trustee for the appellee. The court therefore erred in so holding.
The evidence shows, and it is conceded by the appellant, that the appellee has a curtesy in the lands in controversy which entitles him to the possession and the rents and profits during his life.
Other questions, as to the removal of the administrator and setting aside the sale of the personal property and inventory of the administrator, are procedures of the administration which should be directed to the probate court, in which a court of chancery can not intervene. Reinhardt v. Gartrell, 33 Ark. 727. See also Watson v. Henderson, 98 Ark. 63, 72.
The judgment of the chancery court declaring a resulting trust in favor of the appellee and cancelling the deeds to S. A. Cox, deceased, and vesting the legal and equitable title to the lands in controversy in the appellee is reversed, and the cause is remanded with directions to enter a decree setting aside the order of the probate court authorizing and directing a sale of the lands in controversy and the sale made thereunder, and with directions to enter a decree vesting the legal title in the appellants, subject to the curtesy right of appellee, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.