delivered the opinion of the court, x
This is an action against a curator by one of the persons to w^om was appointed; and by the representative of two others who are deceased. They claim the amount of the minors’ inheritance from their father, which they allege came *475into the possession of the defendant, and for which he has failed to account and pay over. They aver they have a mortgage on his estate, and they state that certain persons, viz. J. Miraumond and Moses Littell, have taken out execution against the property of the defendant, and will enforce it to the great injury of the petitioners, unless enjoined from so doing.
In this instance the testimonyonboth sides is illegal, but as the plaintiffs resorted to that mode of supporting the credibility of their witness, they cannot complain that it is rebutted by the same means. The declarations of the plaintiff cannotbe given in evidence on his behalf, when it does not appear they made part of the res gesta. Where a case involves nothing but facts, and the testimony is various and contradictory, and where fraud and collusion are found by the court of the first instance between the plaintiffs and defendants a,gainst the intervenors, although it is. the evidence whole of the Fslaifauíuien“ yet the judgementoftheinferior court versed.1 ^ re*475The defendant suffered judgement to go by default, and the case was contested in the Probate Court between the parties enjoined and the petitioners.
The answer, among other things, avers that the suit was fraudulent and collusive; that the plaintiffs have long since been paid, and that this action was instituted to cover the property of the defendant from the reach of the executions against which the injunction had been obtained.
The court below considered the charge of fraud and collusion sustained by the evidence, and gave judgement against the plaintiffs.
There are two bills of exceptions on record. One to the defendants being permitted to question a witness whether one of the witnesses sworn on behalf of the plaintiffs, had not been guilty of an act of larceny. It appears the plaintiffs had previously endeavored to prove the conduct of thé witness in other transactions, to show how worthy of credit he was. The testimony on both sides was illegal, but as the plaintiffs resorted to that mode of supporting the credibility of their witness, they have no reason to complain it was rebutted by the same means.
The second is to a refusal of the court to receive the declarations of one of the plaintiffs in evidence. It does not appear they made part of the res gesta, and we think no error was committed in rejecting them.
The case on the merits was much contested in the court below, and the proof is contradictory. The claim of the plaintiffs to the extent set up in the petition is wholly unsupported by proof, and there is, we think, ample matter appearing on the record to justify the judge of the first instance in *476pronouncing fraudulent and collusive a greater part of the demand. There is a small portion of it on which the evidence is not clear, and were it not for the decision below, we should doubt much if we could consider the whole claim as fraudutent* ®ut cases of this kind depend so much on matters of which the judge who tried the cause has better means of being informed than we possess, that we do not feel authorized to'reverse his decision.
.... It is, therefore, ordered, adjudged, and decreed, that the judgement of the Probate Court be affirmed, with costs.