CLOPTON, J.
The statute creates a lien in favor of the landlord, or his assignee, on the crops grown on the rented premises, for the rent of the current year. The lien does not arise from a contract express or implied, but is attached as an incident to the relation of landlord and tenant. Unless such relation, which is the subject of contract, exists, there is nothing to which the lien can attach, and, in consequence, there is no lien.—Scaife v. Stovall, 67 Ala. 237. In respect to the right of complainants to recover their alleged demand for rent, the material question is, whether they and their father, Benj. L. Hardin, sustained to each other the relation of landlord and tenant. If this question be held adversely to complainants, it renders unnecessary a consideration of the liability of defendant- as surety on the official bond of the administrator, for his willful and tortious acts, complained of in this respect.
The bill alleges that certain lands, described therein, were devised to complainants by the will of their mother, which was duly admitted to probate, of which Benjamin Hardin was appointed and qualified executor, in February, 1878; that he was in possession of the lands at the time of the death of their mother, as her husband, and thereafter held the same for eom[386]*386plainants as such devisees, until his death, which occurred September 1, 1879; and raised thereon a crop of cotton, which was removed and sold by his administrator. By the will, Benjamin Iiardin was empowered to manage and control the property devised and bequeathed for the use and benefit of complainants, without giving bond.
The relation of landlord and tenant is founded on contract, which may be express, or implied from the conduct of the parties towards each other in respect to the subject-matter. But the relation will not “be inferred from occupation, if the relative position of the parties to each other can, under the circumstances of the case, be referred to any other distinct cause and does not exist, where the lands are occupied by a person holding the position and relation of trustee. — Taylor’s L. & T., § 44. The allegation of the bill, that Benjamin Iiardin held the lands for complainants, and the provisions of the will, make Clear that he was occupying, managing, and controlling the lands in the capacity of either executor or trustee.. .The relative position of the parties may, under the allegations of the bill, be referred to the will and the power and authority conferred thereby. In such case, the relation of executor and devisees. or of trustee and oestuis que subsists. The relation of landlord and tenant between a father, thus holding lands, and his minor children, will not be inferred.—Russell v. Erwin, 38 Ala. 44. The father may be largely indebted to them for rents and profits, for which he could have been held to account in a proper proceeding, and which may constitute a claim against his estate. The bill admits thfit the cotton was the property of their father, and only claims rent. For rent the complainants had no lien on the cotton removed and sold by the administrator, inasmuch as the necessary relation did not exist; whatever may have been their rights, if they or their guardian had attempted to hold their father to account as trustee, and claimed the entire cotton as the profits of lands held by him in trust for them.
The bill further seeks to hold the defendant liable, as surety on the bond of the administrator, for the amount of exemption of personal property, to which they were entitled, and of which, as complainants claim, they were deprived by the conduct of the administrator. The right to the exemption vested immediately on the death of their father, and is absolute and unqualified ; but no title vests to any specific property, until it is selected, and set apart from the balance of the estate. The right to the exemption is lost, or waived, by a failure to select in due time. We have held, that the claim must be asserted before the property is sold under an order of the court, or before it is subjected to administration for the payment of [387]*387debts, or for distribution. So long as there remains any personal property unsold or unadministered, the selection may be made; but, after the property is sold, there is no subject-matter to which the exemption can attach.—Mitchum v. Moore, 73 Ala. 542; Little v. McPherson, 76 Ala. 552; Henderson v. Tucker, 70 Ala. 381.
In the present case, the guardian of complainants, in September, 1879, selected, as exempt for them, the personal property which had been then appraised, amounting in value to about four hundred dollars; which selection was permitted by the administrator. Other personal property of the estate was sold in January, 1880. The estate was declared insolvent in Juné, 1880; and in July thereafter, the administrator made a settlement of his accounts as such. On this settlement, the administrator accounted for the sales of the personal property, including the cotton. The complainants were represented by a guardian adlitem. No person having been nominated .by the creditors, the former administrator was continued, and acted as such until his death in 1881. No claim for any further exemption was ever asserted, until the present bill was filed, in August, 1885; and the bill does not allege that there was any personal property of the estate, other than that allowed as exempt, and what was accounted for on the settlement.
As a general rule, laches will not be imputed to an infant, and his rights are not waived by a failure to assert them promptly; though they may, under some circumstances, be lost by the failure of their guardian, to whose personal liability they must resort, in such cases, for indemnity. The statute does not contemplate that the infants shall make the selection. Their guardian is the person designated and authorized, and on him the duty is imposed. The excuse given for not selecting property as exempt, in addition to that already allowed, is, that the administrator did not return an inventory of the other personal property from which they could select; and for the loss sustained by this breach of duty, they claim that his surety is liable. The theory of the excuse seems to be, that a selection is dependent on the property being inventoried. It is true, the statute contemplates that all the personal property, except the articles specially exempted, may be inventoried ; and that the selection may be made from the property described in the inventory. But an inventory of the propeity is not essential to a selection, either by the guardian, or by persons appointed by the judge. A selection may be made before administration of the estate is granted; the office of the selection being to individualize the property.—Mitchum v. Moore, supra. And the judge of probate can appoint disinterested persons to make a selection, before the return of an inventory. If a selec[388]*388tion could not have been made until an inventory was returned, there would- be plausible ground on which to rest the excuse. If an inventory was necessary to inform the guardian of "the personal property, and enable him to make a selection intelligently, the statute armed him with power to compel an inventory, or remove the administrator; and in a proper case, a court of equity, if the powers of the Probate Court were inadequate, would interpose, and make the right to select available. Loeb v. Richardson, 74 Ala. 311.
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CLOPTON, J.
The statute creates a lien in favor of the landlord, or his assignee, on the crops grown on the rented premises, for the rent of the current year. The lien does not arise from a contract express or implied, but is attached as an incident to the relation of landlord and tenant. Unless such relation, which is the subject of contract, exists, there is nothing to which the lien can attach, and, in consequence, there is no lien.—Scaife v. Stovall, 67 Ala. 237. In respect to the right of complainants to recover their alleged demand for rent, the material question is, whether they and their father, Benj. L. Hardin, sustained to each other the relation of landlord and tenant. If this question be held adversely to complainants, it renders unnecessary a consideration of the liability of defendant- as surety on the official bond of the administrator, for his willful and tortious acts, complained of in this respect.
The bill alleges that certain lands, described therein, were devised to complainants by the will of their mother, which was duly admitted to probate, of which Benjamin Hardin was appointed and qualified executor, in February, 1878; that he was in possession of the lands at the time of the death of their mother, as her husband, and thereafter held the same for eom[386]*386plainants as such devisees, until his death, which occurred September 1, 1879; and raised thereon a crop of cotton, which was removed and sold by his administrator. By the will, Benjamin Iiardin was empowered to manage and control the property devised and bequeathed for the use and benefit of complainants, without giving bond.
The relation of landlord and tenant is founded on contract, which may be express, or implied from the conduct of the parties towards each other in respect to the subject-matter. But the relation will not “be inferred from occupation, if the relative position of the parties to each other can, under the circumstances of the case, be referred to any other distinct cause and does not exist, where the lands are occupied by a person holding the position and relation of trustee. — Taylor’s L. & T., § 44. The allegation of the bill, that Benjamin Iiardin held the lands for complainants, and the provisions of the will, make Clear that he was occupying, managing, and controlling the lands in the capacity of either executor or trustee.. .The relative position of the parties may, under the allegations of the bill, be referred to the will and the power and authority conferred thereby. In such case, the relation of executor and devisees. or of trustee and oestuis que subsists. The relation of landlord and tenant between a father, thus holding lands, and his minor children, will not be inferred.—Russell v. Erwin, 38 Ala. 44. The father may be largely indebted to them for rents and profits, for which he could have been held to account in a proper proceeding, and which may constitute a claim against his estate. The bill admits thfit the cotton was the property of their father, and only claims rent. For rent the complainants had no lien on the cotton removed and sold by the administrator, inasmuch as the necessary relation did not exist; whatever may have been their rights, if they or their guardian had attempted to hold their father to account as trustee, and claimed the entire cotton as the profits of lands held by him in trust for them.
The bill further seeks to hold the defendant liable, as surety on the bond of the administrator, for the amount of exemption of personal property, to which they were entitled, and of which, as complainants claim, they were deprived by the conduct of the administrator. The right to the exemption vested immediately on the death of their father, and is absolute and unqualified ; but no title vests to any specific property, until it is selected, and set apart from the balance of the estate. The right to the exemption is lost, or waived, by a failure to select in due time. We have held, that the claim must be asserted before the property is sold under an order of the court, or before it is subjected to administration for the payment of [387]*387debts, or for distribution. So long as there remains any personal property unsold or unadministered, the selection may be made; but, after the property is sold, there is no subject-matter to which the exemption can attach.—Mitchum v. Moore, 73 Ala. 542; Little v. McPherson, 76 Ala. 552; Henderson v. Tucker, 70 Ala. 381.
In the present case, the guardian of complainants, in September, 1879, selected, as exempt for them, the personal property which had been then appraised, amounting in value to about four hundred dollars; which selection was permitted by the administrator. Other personal property of the estate was sold in January, 1880. The estate was declared insolvent in Juné, 1880; and in July thereafter, the administrator made a settlement of his accounts as such. On this settlement, the administrator accounted for the sales of the personal property, including the cotton. The complainants were represented by a guardian adlitem. No person having been nominated .by the creditors, the former administrator was continued, and acted as such until his death in 1881. No claim for any further exemption was ever asserted, until the present bill was filed, in August, 1885; and the bill does not allege that there was any personal property of the estate, other than that allowed as exempt, and what was accounted for on the settlement.
As a general rule, laches will not be imputed to an infant, and his rights are not waived by a failure to assert them promptly; though they may, under some circumstances, be lost by the failure of their guardian, to whose personal liability they must resort, in such cases, for indemnity. The statute does not contemplate that the infants shall make the selection. Their guardian is the person designated and authorized, and on him the duty is imposed. The excuse given for not selecting property as exempt, in addition to that already allowed, is, that the administrator did not return an inventory of the other personal property from which they could select; and for the loss sustained by this breach of duty, they claim that his surety is liable. The theory of the excuse seems to be, that a selection is dependent on the property being inventoried. It is true, the statute contemplates that all the personal property, except the articles specially exempted, may be inventoried ; and that the selection may be made from the property described in the inventory. But an inventory of the propeity is not essential to a selection, either by the guardian, or by persons appointed by the judge. A selection may be made before administration of the estate is granted; the office of the selection being to individualize the property.—Mitchum v. Moore, supra. And the judge of probate can appoint disinterested persons to make a selection, before the return of an inventory. If a selec[388]*388tion could not have been made until an inventory was returned, there would- be plausible ground on which to rest the excuse. If an inventory was necessary to inform the guardian of "the personal property, and enable him to make a selection intelligently, the statute armed him with power to compel an inventory, or remove the administrator; and in a proper case, a court of equity, if the powers of the Probate Court were inadequate, would interpose, and make the right to select available. Loeb v. Richardson, 74 Ala. 311. There is no allegation in the bill, that the guardian was not informed of the personal property of the estate; and in the absence of such allegation, the inference must be indulged, that he knew of the cotton, which had been gathered and removed from the lands of the complainants by the administrator, and of the other personal property. There was no legal impediment to the exercise of the right of selection, or to an appointment by the judge of probate.
In Little v. McPherson, 76 Ala. 552, where we said the personal representative can not defeat the right to exemption by converting the choses in action into money, or using the assets in payment of debts before the expiration of the time allowéd creditors to present their claims, the estate had not been declared insolvent, and the property selected remained in specie. Where the estate is declared insolvent, the administrator is required by statute to make a settlement of his accounts on a day named, not less than thirty, nor more than sixty days, from the declaration of insolvency. To permit such settlement to be made without asserting a claim of exemption, may be a waiver as to the administered assets. There is a difference between a defeat of the right of exemption by unauthorized or unrequired acts of the administrator, and by the failure of those entitled to assert the claim. No active duty is imposed upon the administrator to have a selection made. lie may proceed with the due and legal administration of the estate, without delaying for a selection. His duty is passive — to permit a selection of property described in the inventory. Until there has been an effort or proposition to select, he is under no responsibility to those entitled, but who have failed to assert the right. To hold a surety liable on the allegations of the bill, for the amount of the exemption, would require him to compensate complainants for a loss sustained by the inaction of their guardian, and by the failure of the judge of probate to appoint disinterested persons to make a selection. If improper payments were made by the administrator, they should have been contested on his settlement. In the absence of fraud or collusion, or an undue advantage, the settlement is conclusive. We do not decide that the right to exemption [389]*389is lost or waived, if there be any subject-matter to which it can attach. What we do decide is, that the surety is exonerated from liability by reason of the guardian having suffered the administrator to sell the personal property, to have the estate declared insolvent, make a settlement of his accounts, and continue to act until his death, without any effort to make a selection, a partial selection having already been made.
It is urged that the bill shonld be sustained, for the purpose of removing the administration into the Chancery Court. If such be the object of the bill, the administrator de honis non of Hardin's estate is a necessary party. As the sufficiency of the bill for the purpose of removing the administration was not made before, nor passed on by the chancellor, a consideration of it would be premature. The chancellor did not dismiss the bill, but gave leave to amend. It may possibly be amended, so as to bring it within the rule; which requires a clear and strong case to justify the removal of the settlement of an insolvent estate into the Chancery Ccmrt — a case requiring equitable relief, which the Probate Court can not administer, by reason of want of equitable jurisdiction.—Moore v. Winston, 66 Ala. 296; Shackelford v. Bankhead, 72 Ala. 176.
Affirmed.