BYRD, J.
1. Upon the authority of the case of Perkins v. Lewis et al., at the present term, we hold that, after the allotment of the property of the testator among the devisees and legatees under the first article of the will, the executor alone could sell it under the other provisions of the will, and that such power of sale is a personal trust, and did not attach to the executorial office.
Section 1399 of the Code affects only a devise, or a naked power to executors to sell lands unaccompanied with any trust personal to executors. It does not touch a devise to executors, where it is evident from the will, that a personal trust is created. And this will, conferring a power to sell after the payment of debts, and after allotment to his children of their shares, and giving no power to sell the share of the widow, and then creating the executor in legal effect, a trustee to loan out the money, and directing the security to be taken, and that this trust should continue until his children should become of age or marry, must be held to constitute a personal trust which the executor alone could execute, without the intervention of a court of equity, or some statutory regulation ; and such a trust did not pass to the administrators cum testamento annexo.
But, if the power in this case could have been executed by the administrators, still they could only have done so after the “shares” had been allotted to the children of the testator. — See authorities cited on brief of appellee.
It results that the sales of the land and personalty by [286]*286the administrators, without an order of court, were without authority of law, and as to the children, wholly void.
The court below, consequently, did not err in treating those sales void as to the children, nor in charging the administrator with the value of the personal property sold by him or bought by him at such sale.
As to how far these sales may affect the rights of the widow, if she claims under the will, she being present, and consenting to the sale, we shall intimate no opinion, as the appellant has no cause of complaint, so far as the court passed on this question. Whether the purchaser can in a court of equity assert a claim and tide to the interest of the widow as a devisee, to the land, it is not necessary to consider or decide, as the probate court is incompetent to enforce it, and is not authorized to adjudicate the matter in such a case as this, if in any.
The first, second and third assignments of error are disposed of by the views above announced.
2. The fourth is as follows: “In charging the administrator with the value of the rent of the land.” As noticed in the brief of counsel, there is a total absence of proof in the bill of exceptions, as to the value of the rents of the land. The decree indicates, that there was some proof. The bill of exceptions purports to set out all the testimony, and the exception on this point, as shown therein, is in these words : “The court * * * charged the administrator rent of said land from the time of said sale, up to the time of the trial, to which ruling of the court and to which charge the said administrator excepted.”
Now, it is evident to us, that there was no controversy as to the value of the rent, and that the bill of exceptions and the assignment of error only raises the question of law as to the liability of an administrator for the rents of lands which he has sold without authority; and to this point, we shall confine this opinion.
By statute, lands are made legal assets, and the personal representative is authorized to rent them out. — Code, §§ 1737,1751.
It appears from the record, that the purchaser at the sale went into possession of the land, and has remained in [287]*287possession ever since the sale. It seems that the purchaser was a joint owner of the land with the testator, but that he consented to the sale.
We are satisfied that the administrator, under the evidence contained in the record and the law, was chargeable with the value of the rent of the land from the sale thereof, and possession of the purchaser at such illegal sale, to the time of trial. And this result is attained from the existence of statutory provisions already alluded to, and others, which relate to the same subject matter.
And this doctrine is in harmony with, if not in exact conformity to the following adjudicated cases. — Boynton v. McEwen, 36 Ala. 350, and cases cited in Perkins v. Lewis et al., supra, decided by this court.
Whether the administrator was chargeable with the portion of the rents allowed to the widow, is not raised by the assignments of error, in the argument of counsel, and therefore, according to the established practice of this court, we are relieved from passing on that question.
If an administrator takes possession of land, and makes an illegal sale of it, and the purchaser goes into possession under such sale, and retains possession thereunder, the administrator should be held liable for the value of the rents so long as it is held by his occupant. Having the power under the statute to enter the land to rent it, and he having entered and made an illegal sale, and put the purchaser in possession, must be held to account for the rents, and he must look to his occupant for compensation. It is an act of mal-administration, and he and his securities are liable for its consequences. — Boynton v. McEwen, 36 Ala. 348 ; Harrison v. Harrison, 39 Ala. 510, and cases cited ; Henderson v. Simmons, 33 ib. 298.
In the ease of Glenn, Adm'x, v. Waller, Adm’r, et al., at the present term, we held, that the administratrix was chargeable with the proceeds of the sale of timber; and I am unable to appreciate any distinction, upon principle, between that case and the cases above cited, and the one in hand, as to the question under consideration. The case of Martin, Ex’r, v. Williams, Adm’r, 18 Ala. 190, is not opposed to the conclusion at which I have arrived. It only [288]*288decides that an administrator de bonis non cannot recover the use of lands which had been rented out by the administrator in chief in violation of law. That case, in some respects, is opposed to the cases above cited.
3. The fifth and last assignment of error does not raise any question appearing on the bill of exceptions, and we must presume, under repeated decisions of this court, that there was no sufficient evidence to support the allowance or credit claimed by the appellant, or that there was sufficient evidence to authorize the court in disallowing it, even where there is evidence in the record which would have authorized its allowance.
Whenever the inferior court has jurisdiction of the subject matter and the parties, this court will not review its decision upon the evidence, unless all the evidence as to the particular matter is set out in the record, (and it must affirmatively so appear), and an exception is taken to the ruling of the court upon it.
A majority of the court hold, that the court below erred in charging the administrator with the rents of the land, and for that error the decree of the court below must be reversed and the cause remanded.
A. J. WALKER, C. J.
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BYRD, J.
1. Upon the authority of the case of Perkins v. Lewis et al., at the present term, we hold that, after the allotment of the property of the testator among the devisees and legatees under the first article of the will, the executor alone could sell it under the other provisions of the will, and that such power of sale is a personal trust, and did not attach to the executorial office.
Section 1399 of the Code affects only a devise, or a naked power to executors to sell lands unaccompanied with any trust personal to executors. It does not touch a devise to executors, where it is evident from the will, that a personal trust is created. And this will, conferring a power to sell after the payment of debts, and after allotment to his children of their shares, and giving no power to sell the share of the widow, and then creating the executor in legal effect, a trustee to loan out the money, and directing the security to be taken, and that this trust should continue until his children should become of age or marry, must be held to constitute a personal trust which the executor alone could execute, without the intervention of a court of equity, or some statutory regulation ; and such a trust did not pass to the administrators cum testamento annexo.
But, if the power in this case could have been executed by the administrators, still they could only have done so after the “shares” had been allotted to the children of the testator. — See authorities cited on brief of appellee.
It results that the sales of the land and personalty by [286]*286the administrators, without an order of court, were without authority of law, and as to the children, wholly void.
The court below, consequently, did not err in treating those sales void as to the children, nor in charging the administrator with the value of the personal property sold by him or bought by him at such sale.
As to how far these sales may affect the rights of the widow, if she claims under the will, she being present, and consenting to the sale, we shall intimate no opinion, as the appellant has no cause of complaint, so far as the court passed on this question. Whether the purchaser can in a court of equity assert a claim and tide to the interest of the widow as a devisee, to the land, it is not necessary to consider or decide, as the probate court is incompetent to enforce it, and is not authorized to adjudicate the matter in such a case as this, if in any.
The first, second and third assignments of error are disposed of by the views above announced.
2. The fourth is as follows: “In charging the administrator with the value of the rent of the land.” As noticed in the brief of counsel, there is a total absence of proof in the bill of exceptions, as to the value of the rents of the land. The decree indicates, that there was some proof. The bill of exceptions purports to set out all the testimony, and the exception on this point, as shown therein, is in these words : “The court * * * charged the administrator rent of said land from the time of said sale, up to the time of the trial, to which ruling of the court and to which charge the said administrator excepted.”
Now, it is evident to us, that there was no controversy as to the value of the rent, and that the bill of exceptions and the assignment of error only raises the question of law as to the liability of an administrator for the rents of lands which he has sold without authority; and to this point, we shall confine this opinion.
By statute, lands are made legal assets, and the personal representative is authorized to rent them out. — Code, §§ 1737,1751.
It appears from the record, that the purchaser at the sale went into possession of the land, and has remained in [287]*287possession ever since the sale. It seems that the purchaser was a joint owner of the land with the testator, but that he consented to the sale.
We are satisfied that the administrator, under the evidence contained in the record and the law, was chargeable with the value of the rent of the land from the sale thereof, and possession of the purchaser at such illegal sale, to the time of trial. And this result is attained from the existence of statutory provisions already alluded to, and others, which relate to the same subject matter.
And this doctrine is in harmony with, if not in exact conformity to the following adjudicated cases. — Boynton v. McEwen, 36 Ala. 350, and cases cited in Perkins v. Lewis et al., supra, decided by this court.
Whether the administrator was chargeable with the portion of the rents allowed to the widow, is not raised by the assignments of error, in the argument of counsel, and therefore, according to the established practice of this court, we are relieved from passing on that question.
If an administrator takes possession of land, and makes an illegal sale of it, and the purchaser goes into possession under such sale, and retains possession thereunder, the administrator should be held liable for the value of the rents so long as it is held by his occupant. Having the power under the statute to enter the land to rent it, and he having entered and made an illegal sale, and put the purchaser in possession, must be held to account for the rents, and he must look to his occupant for compensation. It is an act of mal-administration, and he and his securities are liable for its consequences. — Boynton v. McEwen, 36 Ala. 348 ; Harrison v. Harrison, 39 Ala. 510, and cases cited ; Henderson v. Simmons, 33 ib. 298.
In the ease of Glenn, Adm'x, v. Waller, Adm’r, et al., at the present term, we held, that the administratrix was chargeable with the proceeds of the sale of timber; and I am unable to appreciate any distinction, upon principle, between that case and the cases above cited, and the one in hand, as to the question under consideration. The case of Martin, Ex’r, v. Williams, Adm’r, 18 Ala. 190, is not opposed to the conclusion at which I have arrived. It only [288]*288decides that an administrator de bonis non cannot recover the use of lands which had been rented out by the administrator in chief in violation of law. That case, in some respects, is opposed to the cases above cited.
3. The fifth and last assignment of error does not raise any question appearing on the bill of exceptions, and we must presume, under repeated decisions of this court, that there was no sufficient evidence to support the allowance or credit claimed by the appellant, or that there was sufficient evidence to authorize the court in disallowing it, even where there is evidence in the record which would have authorized its allowance.
Whenever the inferior court has jurisdiction of the subject matter and the parties, this court will not review its decision upon the evidence, unless all the evidence as to the particular matter is set out in the record, (and it must affirmatively so appear), and an exception is taken to the ruling of the court upon it.
A majority of the court hold, that the court below erred in charging the administrator with the rents of the land, and for that error the decree of the court below must be reversed and the cause remanded.
A. J. WALKER, C. J.
My brother judge and myself concur in the opinion, that .error was committed in charging the administrator with the rents of land illegally sold by him. The whole property of an estate, including the lands, is charged with the payments of debts, but the land is assets in the administrator’s hands only through the exercise of the statutory powers of sale and renting. Ashurst v. Ashurst, 13 Ala. 784; Smith v. Smith, 13 Ala. 334; Smith v. Wiley, 19 Ala. 217; S. C., 22 Ala. 396 ; Smith v. King, 22 Ala. 562 ; Petit v. Petit, 32 Ala. 308; Duncan & Hooper v. Stewart, 25 Ala. 413. If the land were assets which the administrator illegally converted, he should be charged with the proceeds or value, which the law does not permit. — Ashurst v. Ashurst, supra ; Petit v. Petit, supra.
In Martin v. Williams, 18 Ala. 190, it was held in reference to a state of statute law not so varying as to effect the question, that the proceeds of an illegal rénting are not assets of the estate.
[289]*289The mere sale of land without authority does not even throw a cloud over the title, and we cannot perceive how it can render the seller responsible for the rents. — Posey v. Conaway, 10 Ala. 811.
It has been held by this court, that an administrator occupying land could, at the election of the distributees, be charged with rent for the period of his occupation, but those cases fall far short of sustaining the ruling of the court below.
We concur with our brother Byrd in the other points ruled by him.