¶1This was an- appeal by the plaintiff in error, as one of the next of kin and heirs at law of decedent, from an order of the judge of probate of the 9th of June, I860, allowing the final account of Hall as administrator, and discharging *8bim from liability upon bis bond to the estate. The parties agreed upon issues which restricted the accounting to certain bank stock, which stood in the name of decedent, to moneys received by Hall from the widow of decedent and to a claim of interest. These items were not put upon the inventory; and it was claimed by plaintiff in error that these moneys, and the proceeds of the bank stock, together with certain gains by way of interest, were assets of the estate, and were chargeable against Hall in his account. The respondent claimed that these effects were all along treated and considered as the property of the widow; that the judge of probate, sitting as commissioner to adjust claims against the estate, had allowed some twenty-four thousand dollars of claims against the estate, which were in equity the property of the widow, and that the supposed assets in question were regarded as her own under the circumstances. We gather from the record that no commissioners were appointed to pass upon claims against the estate, and that the judge of probate performed the duties of commissioners, and made the allowance now said to be in favor of the widow.
¶2On the trial in the circuit court, evidence was given that the widow and administrator were brother and sister; that after her husband’s death the widow delivered to her brother, the administrator, some fourteen hundred dollars, of which one thousand dollars was taken from the private trunk of decedent, and two hundred dollars received from his debtors, and the residue was derived from a sale of bank stock standing in the name of the intestate. Evidence was also given for plaintiff in error tending to show that the administrator knew the sources from whence these funds came, and that he afterwards used them in his private business, giving to the widow on their reception securities running to her individually, and which are still standing unpaid.
¶3*9The respondent adduced evidence tending to show that in June/ 1852, the judge of probate, acting as commissioner, allowed claims against the estate in favor of several parties, for the benefit of the widow, to about twenty-four thousand dollars, and to others, for the benefit of the heirs, to about two hundred dollars; that the widow had treated the moneys in question as her own, and as her property had lent them to respondent on securities running to herself; that the plaintiff in error knew of such dealing and of the source from whence the funds were derived, and as agent for the widow had collected interest on the securities given to her.
¶4To rebut this the plaintiff in error offered to prove that he had not collected anything on said securities since coming of age, and that the claims allowed against the estate were purchased with the proceeds of the estate by the administrator, and assigned to the widow without his knowledge or participation. This evidence was excluded on objection by defendant in error,'that the award of the judge of probate could not be impeached.
¶5The rejection of the offer requires us to assume that the proof proposed was practicable, and to consider what its tendency would have been if it had been made. In connection with the other facts, such proof must have conduced to show that the administrator acted fraudulently and collusively in permitting the allowance of the claims in favor of the widow. When the claims were before the judge for adjudication, the administrator represented the estate, and it was his duty to resist and not forward or connive at any demand against the estate which was fictitious, illusory or otherwise unjust or dishonest. He was the only party entitled to be heard in defense of the estate and the only one who could' appeal from an unfavorable decision. And if he knowingly .suffered himself to be instrumental in aiding or permitting the allowance of a *10fictitious demand as a real one, lie committed a fraud upon the estate and upon the court, and he cannot be heard to say against heirs and next of kin, on final accounting, that a decision so obtained or induced is unimpeachable and a shield of defense for him. — McPherson v. Cunliff, 11 Sergt. & R., 422, 437; Lessee of Rhoades & Snyder v. Selin, 4 Wash., C. C. R., 715.
¶6If he had possession of.the funds and was aware of facts which either led him, or were sufficient to lead him to know that they belonged to the estate, his omission to place them on the inventory would not excuse him from accounting for them when duly required to do so by the .next of kin. And if such funds were owned by the estate, he could not, in such a case, excuse or defend himself on the ground that he had squandered or given them away or .treated them as lent or loaned to himself by the widow, upon securities running to herself.
¶7When this ruling was made, the case .was on trial before a jury, who, after the evidence was all put in, were sent out to deliberate on their verdict. While they were absent, defendant in error moved the court to decide the cause without a jury, on the ground that the issues were by law properly triable by the court alone. The jury soon coming in and declaring their inability to agree, the court discharged them, and then decided, against the objection of plaintiff in error, to try the case as requested by defendant in error, without a jury. . And afterwards, and upon the evidence taken before the jury, the court affirmed the order of the judge of probate. The parties consented that the evidence need not be retaken.
¶8The question is upon the refusal by the court to allow the case to be tried a second time by jury. The issues to be tried were not mere issues of law. The law of the case could not be declared without ascertaining *11the facts, and the facts were not admitted. Besides, a portion of the evidence was oral and conflicting. The plaintiff in error had the right to a trial by jury if he insisted on it, — § S6S5, Corny?. L., — and one jury having disagreed and been discharged, it was the duty of the court to impannel a new one unless the parties in some manner waived it.— § JjSJfi, Comp. L. The record shows that the plaintiff in error insisted upon the right, and that was enough.
¶9The order of the circuit court, affirming that of the probate court, must be reversed, with costs, and a new trial awarded.