CLOPTON, J.
The claim of appellants originated as follows; Joshua H. Beadle and-William Echols, as execu[420]*420tors of the will of Adam Hall, which was admitted to probate, in June, 1858, filed a bill in the Chancery Court, to obtain a construction of the will, and the directions of the court iu the administration of the estate. William Echols having died during the pendency of the suit, it was continued in the name of Beadle, the surviving executor, who resigned his executorship in May, 1807, under an agreement, which will be hereinafter noticed; and the appellee, Joseph Steele, was appointed administrator de bonis non, with the will annexed. On a supplemental bill filed by Steele, a final settlement of the administration of the executors was made, and a decree rendered, in January, 1881, in favor of Beadle and William H. Echols as administrator of William Echols, against Steele, as administrator de, bonis ñon, for the sum of three thousand, nine hundred and fifty-six dollars, and also for the sum of five hundred dollars as compensation to their solicitors, with interest on each from July 1, 1879. The present bill is filed by them, to condemn the land therein mentioned to the payment of this decree. The bill avers a deficiency of personal property, its waste by the administrator de bonis non, the issue of execution, on the decree, the return of “no property”, and the insolvency of Steele and his sureties. Complainants’ title to relief is rested on the doctrine, that a court of equity will give aid to a creditor of the estate of a deceased person, and enforce payment of his debt out of lands descended or devised, in the hands of the heir or devisee, when it appears that the personal estate was originally insufficient, or has been wasted by the personal representative, and that all legal remedies would be unvailing in consequence of their insolvency.
The land sought to be subjected constituted a part of a larger tract of land, which was sold by the testator in his life-time, and which Steele, as administrator, took and received from the vendee in compromise and settlement of the unpaid purchase-money. The compromise was reported to, and confirmed by the Chancery Court. Having been acquired by the personal representative, in payment of a debt due the testator, the land became assets of his estate, and subject to sale for distribution, or for the payment of debt, in the same manner as if it had descended or been devised. — Cruikshanks v. Luttrell, 67 Ala. 818.
On the annual settlement made by the executors in the Probate Court, in August, 1861, an allowance of twenty-five hundred dollars for special services was made to them. This [421]*421allowance was brought forward as a credit, on the final settlement in the Chancery Court. But for this credit, and the commissions allowed on the final settlement, there would have been no balance due the executors. It is, therefore, manifest that the balance, for which the decree was rendered in their favor, consists of the usual commissions and the allowance for special services. By statute, all the property of a decedent, except such as is declared exempt, is charged with the payment of his debts, and may be sold for the payment of the same. This charge the personal representative can not defeat, by a distribution of the lands among the heirs or devisees, before the debts are paid. The statute, however, has been construed as charging the lands with debts owing by the decedent at the time of his death; and it has been held that they can not be sold to pay the costs and expenses of administration, when no debts of the decedent are shown for the payment of which the lands are liable under the statute. — Garrett v. Garrett, 64 Ala. 263; Sermon v. Black, 79 Ala. 507. It follows, that complainants are not entitled to subject the laxids to the payment of the decree, as descended or devised. But, as we are not prepared to hold, that a personal representative, by converting personal assets into real estate, can thereby deprive a creditor of the right to subject such real estate to his debt, the same as he would have had to subject the personal estate so converted (which question we do not decide), we shall consider the equity of complainants on the theory, thát the purpose of the bill is to subject assets in the hands of a legatee, the assets otherwise being insufficient to pay the decree.
On this question, the character of complainants’ claim, the possession by the executors of personal assets which they could have appropriated to the payment of the claim, their voluntary payment of some of the legacies, their duty to pay the legacy to Mrs. Margaret Moore and her children, and the agreement under which the. surviving executor turned over the assets to the administrator de bonis non, are all proper matters for consideration, and materially affect the equity of complainants. It is well settled, .that an executor or administrator is not only authorized, but it is his duty, to apply to the payment of a debt due him by an estate which he represents, assets which came to his possession, and the title and ownership of which he can legally transfer. He has no volition or election in the matter; the law, by its own operation, makes the application; and no laches on the part of the [422]*422personal representative, and no indiscretion in distributing or parting with the assets can avoid the result. By qualifying as executor or administrator, and taking upon himself the right and duty to demand and receive, and the concurrent obligation to pay, the claim will ordinarily be regarded as extinguished. — Miller v. Irby, 63 Ala. 477; Trimble v. Fariss, 78 Ala. 260; Dickie v. Dickie, 80 Ala. 57. While it may be that the decree in favor of the executors, having been rendered on their final settlement, is conclusive that their claim was not extinguished as against the succeeding representative, the right and duty of retainer has an important bearing upon the equity of complainants, to subject property in the hands of legatees or distributees to whom it has been distributed by the succeeding administrator; especially when the relation of personal representative of the estate and legatees or distributees previously existed, and the claim sought to be enforced is for compensation to the former representative. It clearly appears that the executors had in their hands at the time, and subsequent to the allowance of the claim by the Probate Court, assets largely more than sufficient to pay the claim, which they could have legally appropriated to that purpose.
The land sought to be condemned was sold in February, 1868, under an order of the Chancery Court, and purchased by Mrs. Moore. By the will of the testator, a legacy of four thousand dollars was bequeathed to her, the interest on which she was entitled to use during her life, and at her death the principal to be equally divided among her children. In December, 1866, the Chancery Court had ordered Beadle, as executor, to pay the legacy to Mrs. Moore, on her executing bond CQnditioned that the principal should be paid to her children at her death; and if she failed to execute such bond within twenty days after the adjournment of the court, that he should pay the same to the register, to. be loaned out, and the interest paid annually to her. She failed to execute the bond, and the executor failed to pay the money to the register. The sale of the land, and its purchase by Mrs. Moore, was reported by the register to the court, and his report was confirmed.
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CLOPTON, J.
The claim of appellants originated as follows; Joshua H. Beadle and-William Echols, as execu[420]*420tors of the will of Adam Hall, which was admitted to probate, in June, 1858, filed a bill in the Chancery Court, to obtain a construction of the will, and the directions of the court iu the administration of the estate. William Echols having died during the pendency of the suit, it was continued in the name of Beadle, the surviving executor, who resigned his executorship in May, 1807, under an agreement, which will be hereinafter noticed; and the appellee, Joseph Steele, was appointed administrator de bonis non, with the will annexed. On a supplemental bill filed by Steele, a final settlement of the administration of the executors was made, and a decree rendered, in January, 1881, in favor of Beadle and William H. Echols as administrator of William Echols, against Steele, as administrator de, bonis ñon, for the sum of three thousand, nine hundred and fifty-six dollars, and also for the sum of five hundred dollars as compensation to their solicitors, with interest on each from July 1, 1879. The present bill is filed by them, to condemn the land therein mentioned to the payment of this decree. The bill avers a deficiency of personal property, its waste by the administrator de bonis non, the issue of execution, on the decree, the return of “no property”, and the insolvency of Steele and his sureties. Complainants’ title to relief is rested on the doctrine, that a court of equity will give aid to a creditor of the estate of a deceased person, and enforce payment of his debt out of lands descended or devised, in the hands of the heir or devisee, when it appears that the personal estate was originally insufficient, or has been wasted by the personal representative, and that all legal remedies would be unvailing in consequence of their insolvency.
The land sought to be subjected constituted a part of a larger tract of land, which was sold by the testator in his life-time, and which Steele, as administrator, took and received from the vendee in compromise and settlement of the unpaid purchase-money. The compromise was reported to, and confirmed by the Chancery Court. Having been acquired by the personal representative, in payment of a debt due the testator, the land became assets of his estate, and subject to sale for distribution, or for the payment of debt, in the same manner as if it had descended or been devised. — Cruikshanks v. Luttrell, 67 Ala. 818.
On the annual settlement made by the executors in the Probate Court, in August, 1861, an allowance of twenty-five hundred dollars for special services was made to them. This [421]*421allowance was brought forward as a credit, on the final settlement in the Chancery Court. But for this credit, and the commissions allowed on the final settlement, there would have been no balance due the executors. It is, therefore, manifest that the balance, for which the decree was rendered in their favor, consists of the usual commissions and the allowance for special services. By statute, all the property of a decedent, except such as is declared exempt, is charged with the payment of his debts, and may be sold for the payment of the same. This charge the personal representative can not defeat, by a distribution of the lands among the heirs or devisees, before the debts are paid. The statute, however, has been construed as charging the lands with debts owing by the decedent at the time of his death; and it has been held that they can not be sold to pay the costs and expenses of administration, when no debts of the decedent are shown for the payment of which the lands are liable under the statute. — Garrett v. Garrett, 64 Ala. 263; Sermon v. Black, 79 Ala. 507. It follows, that complainants are not entitled to subject the laxids to the payment of the decree, as descended or devised. But, as we are not prepared to hold, that a personal representative, by converting personal assets into real estate, can thereby deprive a creditor of the right to subject such real estate to his debt, the same as he would have had to subject the personal estate so converted (which question we do not decide), we shall consider the equity of complainants on the theory, thát the purpose of the bill is to subject assets in the hands of a legatee, the assets otherwise being insufficient to pay the decree.
On this question, the character of complainants’ claim, the possession by the executors of personal assets which they could have appropriated to the payment of the claim, their voluntary payment of some of the legacies, their duty to pay the legacy to Mrs. Margaret Moore and her children, and the agreement under which the. surviving executor turned over the assets to the administrator de bonis non, are all proper matters for consideration, and materially affect the equity of complainants. It is well settled, .that an executor or administrator is not only authorized, but it is his duty, to apply to the payment of a debt due him by an estate which he represents, assets which came to his possession, and the title and ownership of which he can legally transfer. He has no volition or election in the matter; the law, by its own operation, makes the application; and no laches on the part of the [422]*422personal representative, and no indiscretion in distributing or parting with the assets can avoid the result. By qualifying as executor or administrator, and taking upon himself the right and duty to demand and receive, and the concurrent obligation to pay, the claim will ordinarily be regarded as extinguished. — Miller v. Irby, 63 Ala. 477; Trimble v. Fariss, 78 Ala. 260; Dickie v. Dickie, 80 Ala. 57. While it may be that the decree in favor of the executors, having been rendered on their final settlement, is conclusive that their claim was not extinguished as against the succeeding representative, the right and duty of retainer has an important bearing upon the equity of complainants, to subject property in the hands of legatees or distributees to whom it has been distributed by the succeeding administrator; especially when the relation of personal representative of the estate and legatees or distributees previously existed, and the claim sought to be enforced is for compensation to the former representative. It clearly appears that the executors had in their hands at the time, and subsequent to the allowance of the claim by the Probate Court, assets largely more than sufficient to pay the claim, which they could have legally appropriated to that purpose.
The land sought to be condemned was sold in February, 1868, under an order of the Chancery Court, and purchased by Mrs. Moore. By the will of the testator, a legacy of four thousand dollars was bequeathed to her, the interest on which she was entitled to use during her life, and at her death the principal to be equally divided among her children. In December, 1866, the Chancery Court had ordered Beadle, as executor, to pay the legacy to Mrs. Moore, on her executing bond CQnditioned that the principal should be paid to her children at her death; and if she failed to execute such bond within twenty days after the adjournment of the court, that he should pay the same to the register, to. be loaned out, and the interest paid annually to her. She failed to execute the bond, and the executor failed to pay the money to the register. The sale of the land, and its purchase by Mrs. Moore, was reported by the register to the court, and his report was confirmed. In his report, the register submits the mode of receiving the purchase-money of the land to the direction of the court, under a bill which had been filed by Mrs. Moore, asking directions as to the investment of the legacy. The court subsequently directed that the legacy should be invested in real estate, and the title [423]*423taken to lier for her life, with remainder to her children. She thereupon paid the purchase-money by receipting to the administrator de bonis non for the amount of the legacy. No conveyance having been made to Mrs. Moore during her life, the court ordered the register, after her death, to make a conveyance to the children, which he did. Appellee Moore is one of the children, and has acquired the title of the others! The executors were not parties to this bill, and they insist that these orders of the Chancery Court are not binding on them. This may be conceded; but, on the final settlement of the administrator de bonis non, to which they were parties, he was charged with the purchase-money of the land; but, on their objection, the receipt for the legacy was not allowed as a voucher of credit. The land, having been sold under a valid and regular order, and the sale confirmed by the court, ceased to be assets of the estate, notwithstanding the purchase-money may not have been paid; and, until the sale is vacated and set aside, can not be again sold as the property of the estate. The executors, having charged the administrator with the purchase-money, and a decree having been rendered against him, elected to affirm the sale so far as they had capacity, and are estopped to assert the land is the property of the estate.
The failure of the executor to pay the amount of the legacy into the registry of the court, as ordered, can nót be attributed to a want of money. He had in his hands more than enough to pay the legacy, which he loaned out on interest, and thus converted. ¥e say converted, for, by the will, the executors were authorized to loan on interest only the money remaining after paying the debts and legacies. Also, the executors paid some of the pecuniary legacies without, so far as appears, requiring refunding bonds, with knowledge of their claim, and thus disabled themselves to compel such legatees to refund. — Moore v. Lesueur, 33 Ala. 237. Also, Beadle, the surviving executor, resigned his executorship, and turned ovér to the succeeding representative assets of the value of more than twenty thousand dollars, consisting principally of notes taken by the executors for money loaned by them, under an agreement that he would resign, and turn over all the assets of the estate to his successor, and make a final settlement, and, if any balance be found in his favor, that a decree should be rendered payable out of the first money collected. Considering that the executor had the right of retainer, and possession of assets more [424]*424than sufficient to pay his claim, which he could legally apply, and voluntarily parted with them by turning them over to his successor in the administration, tbe effect of tbe agreement is, that be would look to bis successor personally for tbe payment of the same, out of tbe first money collected by him.
Tbe right of a creditor to compel a legatee, whose legacy has been paid, to refund, when tbe assets of tbe estate are insufficient to pay tbe debts, or have been -wasted by tbe representative, may be lost by a course of dealing wbicb renders tbe assertion of such right inequitable. — 2 Williams on Ex’rs, 1501. When all tbe facts and circumstances discovered by tbe record — Beadle’s conduct, and course of dealing, bis having disabled himself to compel some of tbe legatees to refund — are considered, and tbe foregoing principles of equity applied to tbe various aspects of tbe case, and their co-operative' effect regarded, to subject to bis claim property in tbe bands of particular legatees, to whom it bad been delivered by tbe administrator de bonis non in satisfaction of their legacy, wbicb legacy Beadle bad been ordered to pay, and failed when be bad sufficient assets to do so, and impose tbe entire burden of tbe claim upon such legatees, would be inequitable, though actual wrong or fraud was not intended.
Affirmed.