STONE, J.
The question which meets us at the threshold of this case, renders it necessary that we decide whether the claims which are the subject of controversy in this suit, are barred by the limitation known in this State as the statute of non-claim. Although that statute has existed for near fifty years, without material change in any point which the record before us presents, we are not aware that the point now under discussion has ever before been made or considered, Yery able arguments have been submitted by counsel-^arguments which furnish unmistakeable evidence of thorough research; and we have ourselves expended much time and labor in pursuit of authorities bearing on this question, with little or no success. Although most of the States composing the late Union have statutes of limitation, specially applicable to claims against the estates of decedents, in none of them have we found language like that which creates the difficulty in the present suit. This being the case, it will not surprise the profession, that neither the industry of counsel, nor our own reading, has led to the discovery of any adjudged cases to aid us in the construction of the language of our statute. Some adjudications have been made on the import of the word “claim,” found in our statute; and from those adjudications, analogies, real or fancied, may be drawn; but we confess that we have derived little or nothing that is satisfactory from this source.—See McBroom v. Governor, 6 Porter, [495]*49532; Ready v. Thompson, 4 Stew. & Por. 52; Sharp v. Herrin, 32 Ala. 502; Gordon v. Gibbs, 3 Smedes & M. 473; Foster v. Maxcy, 6 Yerger, 224; Gooken v. Sanborn, 3 N. H. 491; Gunter v. Janes, 6 California, 643; Gray v. Palmer, ib. 616; Williams v. Conrad, 11 Humph. 412; Walker v. Byers, 14 Ark. 246; Doe v. McLoskey, 1 Ala. 740, et seq.; Murdock v. Rousseau, 32 Ala. 611; Puryear v. Puryear, 34 Ala. 555.
The statute to be construed is found in the Code: “§ 1883. All claims against the estate of a deceased person, must be presented within eighteen months after the same have accrued, or within eighteen months after the grant of letters testamentary or of administration; and if not presented within that time, are forever barred.” “§ 1884. The provisions of the preceding section do not apply to * * * * heirs or legatees, claiming as such.” (We omit the parts of section 1884 which do not apply to this case.)
The question before us arises on the construction of the language, “heirs and legatees claiming as such.” This language was first employed in the act of 1815, (Clay’s Digest, 195, § 17,) and was copied into the Code. Eor the appellants it is contended, that to come within the exception, the claimants must stand in the relation of heirs or legatees of the estate against which the claim is asserted, and to whose administrator, in the absence of the proviso, the claim should be presented.
After much reflection, I am still far from a satisfactory conviction that the solution I am about to give is the true one. My brothers are less troubled with doubts than I am, and, on that account, I announce the result with less reluctance. We hold, that the appellees are embraced in the proviso to the act of 1815, and in section 1884 of the Code, under the words “heirs and legatees claiming as such,” for the following reasons :
Eirst: They are within the letter of the statute. They claim in the character of heirs and legatees, which is but a legitimate paraphrase of the language, “heirs and legatees claiming as such.” They come within the heirs and legatees, and their present claim can b no other capacity. They have claims against Kirkland Harrison, only because they are th< [496]*496heirs, &c. of Richard B. Harrison. True, the statute omits the word distributees; -but we tbink that does not vary the result. The words, heirs and legatees, are evidently used in a generic sense, and are intended to embrace all persons who claim either by descent, or under testamentary provision.
Second: In the act of 1815, the exception in favor of “heirs and legatees, claiming as such,” is put as a proviso to the section which enacts the bar, known as the statute of non-claim. In the Code, the exception is found in a separate section ; but this was done in pursuance of an evident plan of the codifiers, to embody our statutes, as far as possible, in brief sentences, confined to a single subject. The same plan was pursued in other parts of the Code ; and certainly a statute, thus framed, does not differ in its legal results from one which expresses the exception in the form of a proviso. Provisos and exceptions do not enlarge the operation of enactments, but are restrictive in their character. Now, our statute of non-claim, even without the exception, does not, and never did, embrace the claim of heirs or legatees, to inheritances or bequests coming to them directly from the estate of which they are heirs or legatees. They language of the statute is, (Code, § 1888,) “all claims against the estate of a deceased person” &c. To be a claim against the estate, there must be the relation of debtor and creditor; and we are not aware of any conceivable case in which the claims of heirs and legatees to the estate, or parts of it, can be called claims against the estate. Claims against an estate are almost universally those claims against the testator or intestate, which existed, and were left unadjusted, at the time of his death. I will not say there may not be exceptional cases, in which valid claims against an estate may have their inception after the death of the person, late its owner; but the general rule is the other way,—See Mulhall v. Williams, 32 Ala. 489, and authorities cited. It is manifest, however, that the claims of heirs and legatees, to share in the estate, after the payment of the debts, &c., is in no sense a claim against the estate. To hold, then, that the exception embraces only those persons who stand in the relation of heirs and [497]*497legatees to the estate, to whose administrator the statute requires claims to be presented, would be to give it ho operation whatever, so far as the clause we are considering is concerned. We give it operation, by holding that it includes persons in the condition of the present appellees.
A further argument: Claims against the estate of a deceased person, are the subject of both sections of the Code — 1888 and 1884. They make no allusion to claims to the estate, or to parts of it. Claims against the estate, if not presented, are barred; and these sections embrace none other. Supplying the ellipsis in section 1884, it would read substantially as follows: Claims against the estate of a deceased person, preferred by heirs or legatees claiming as such, are not embraced in section 1883. That is, they are not barred by a failure to present therq within eighteen months. Under the paraphrase of the statute above submitted — namely, that the provisions of section 1883 do not apply to the claims against the estate preferred by heirs and legatees claiming in that capacity, the present appellees are brought directly within the operation of the proviso or exception, and are not barred.
In what we here announce, it is not necessarily decided whether the claim of the appellees is embraced in the provisions of section 1883 of the Code. If embraced, it is also embraced in the exceptional clause of section 1884.
It is argued that what we have said above cannot be the proper construction of this clause, because, at the time it was first enacted, (1815,) and for thirty years afterwards, we had no statute which required, or even authorized, an administrator of an administrator-to settle the administration of his intestate.—See Willis v. Willis, 9 Ala. 721; Price v. Simmons, 13 Ala. 749; Whitworth’s Distributees v. Whitworth’s Adm’rs, in manuscript. But, during all that time, the court of chancery possessed ample power in the premises, and this furnished a field for the statute to operate upon.—Taliaferro v. Bassett, 3 Ala. 674; King v. Smith, 15 Ala. 269.
It is further urged against this construction, that while it relieves the heirs and legatees of the first estate from the bar of the statute, the exception is not broad enough to [498]*498cover tbe case of tbe administrator de bonis non; and as bis right to cite tbe administrator of an administrator to a settlement is conferred by tbe same statute wbicb confers tbe right on tbe heirs and legatees, this will lead to such gross inequakty and injustice, that tbe legislature cannot be supposed to have intended such result. — See Code, §§ 1876 et seq.
Without intending to decide, at this time, whether or not tbe bar would operate, if pleaded against tbe administrator de bonis non, tbe legislature stands relieved of all charge of intentional inequality, when it is remembered that until 1845, thirty years after tbe enactment of tbe statute of non-claim with its exceptions, the administrator de bonis non could recover from tbe administrator in chief, or bis representative, only such portion of tbe assets as remained in specie, unaltered and unconverted.—See Moore v. Armstrong, 9 Porter, 704; Price v. Simmons, supra; Willis v. Willis, supra; King v. Smith, 15 Ala. 268; Gould v. Hayes, 19 Ala. 450. See, also, Pamph. Acts, 1844-5, p. 166; ib 1845-6, p. 14; ib. 1853-4, p. 24. To a claim or suit for property, remaining in specie, tbe statute of non-claim is no defense.—Loche v. Palmer, 26 Ala. 312; Andrews v. Huckabee, 30 Ala. 151. This may account lor tbe failure of tbe legislature to insert an exception in favor of administrators de bonis non; for such exception, until 1845, would have been useless and supererogatory.
[2.] To tbe plea of tbe statute of limitations of three years, it is a sufficient objection, that tbe plea does not aver that tbe demand sued for is an open account; and there is nothing in tbe petition for tbe citation wbicb relieves tbe pleader from tbe duty of complying with this rule; or which’ tends to show that tbe demand sought to be enforced is, under our decisions, an open account.—Winston v. Trustees, 1 Ala. 124; Brooks v. McFarland, 20 Ala. 483; Sheppard v. Wilkins, 1 Ala. 62.
[3.] It is objected to tbe plea of tbe statute of limitations of six years, that it is pleaded in short- — simply by name. Tbe record discloses that both parties to this controversy pleaded in short by consent, and no objection seems to have been taken in tbe court below on that account. Under these [499]*499circumstances, the plea must be regarded as well pleaded. See Jackson v. Jackson, 7 Ala. 791; Todd v. Todd, 15 Ala. 743; Amason v. Nash, 24 Ala. 281.
Richard B. Harrison died in March, 1843, and soon af-terwards, Kirkland Harrison administered on his estate. Kirkland Harrison died in the fall or winter of 1849, without having settled his administration; and in February, 1850, E. A. Saunders and Mrs. Harrison administered on his estate. The present proceedings were instituted in June, 1858; citation was served soon afterwards, and the decree was rendered in 1859.
[4.] The statute of limitations of six years was demurred to in the court below, and the demurrer sustained; and this presents the next question for our consideration. As the cause of action in this ease accrued before the Code became operative, (January 17th, 1858,) this question must be decided on the statutes found in Clay-’s Digest, p. 826. See Pamph. Acts 1853-4, p. 71.
There is no statute which, in terms, fixes a limitation to proceedings like the present; this not being one of the actions mentioned in the six years’ limitation. — Clay’s Dig. '326, § 78. If, then, there be a limitation applicable to this 'case, it must be sought for in the analogy which is supposed to exist between the present proceedings and some of the actions enumerated. We deem it unnecessary to discuss this supposed analogy, for the following reasons:
First: Administrators, when they are appointed, and before they enter upon the performance of their duties, are required to give bond, conditioned to “perform all the duties which are, or may be, by law required of them.” — Clay’s Dig. 220, § 3; Code, § 1683. The voluntary or coerced settlement of an administrator in the probate court, although not generally a proceeding directly on the bond, is still so far connected with it, that, when a decree is rendered, and an execution returned “ no property found,” an execution may issue, for the enforcement of the decree, against the sureties on the bond.—Code, § 1922; Elliott v. Mayfield, 4 Ala. 417; Kirby v. Anders, 26 Ala. 466; Poacher v. Weisinger, 20 Ala. 102; Hanna v. Price, 23 Ala. 826. Against [500]*500liability, oil their bond, for tbe payment of such decree, the sureties cannot interpose the plea of the statute of sis years.—Ragland v. Calhoun, 36 Ala. 606. It would be strange if a limitation should run in favor of the principal obligor, while it would not exonerate the sureties, who only bind themselves for the defaults of their principal. To so hold, would be to give to the obligation of the sureties greater dignity and effect than the same instrument exerts on their principal.
It is proper that we should state, that the case of Ragland v. Calhoun, supra, turned on the construction of another statute than the one we are construing.
The argument offered above springs naturally out of the solemn bond and obligation which the administrator rests under, for the performance of all the duties which are, or may be, required of him by law. It is not weakened, nor rendered inapplicable to the present case, by the fact that this is a proceeding against the administrator of an administrator, upon the decree rendered in which cause no execution can issue against the sureties of Kirkland Harrison. See Jenkins v. Gray, 16 Ala. 100; Kirby v. Anders, 26 Ala. 466. Neither the principle of liability, nor the length of time necessary to perfect a bar, can be. affected by the accident of the principal obligor’s death, as we shall hereafter show. — See Code, § 1928.
Second : It is frequently the case, that the proceeding is instituted in the first instance on the bond of the administrator, without preliminary steps of any kind to charge the administrator. The following are of this class: When an administrator has neglected or failed to pay a judgment rendered against him, to be levied de bonis intestatis, a suit may be maintained on the bond against him and his sureties, even though no execution has issued for the collection of the judgment, provided assets had come to his hands with which he might have paid the judgment.—Burke v. Adkins, 2 Porter, 236; Thompson v. Searcy, 6 Porter, 393-412; Kyle v. Mays, 22 Ala. 692; Amason v. Nash, 24 Ala. 279; Dean v. Portis, 8 Ala. 104.
A distributee may proceed in equity against, the administrator and his sureties, or, if the administrator dies leav[501]*501ing no property, or baying no personal representative within the State, against the sureties alone, without first fixing a liability on the administrator by suit. In such case, all the obligors in the bond, save such as so die, or are insolvent, should be made defendants.—See Moore v. Armstrong, 9 Porter, 697; Taliaferro v. Bassett, 3 Ala. 670-674; Watts v. Gayle, 20 Ala. 817; Frierson v. Travis, in MSS.
In the settlement of administrators’ accounts, no item can be charged against the administrator, no matter how he may have conducted himself in regard to it, unless such item properly belong to the assets of the estate; for the administrator, in such settlement, can only be charged to the extent that he and his sureties are liable under the statutory bond.—Pettit v. Pettit, 32 Ala. 288; McCain v. McCain, 12 Ala. 510; Mounger v. Burke, 17 Ala. 48.
On the question of the bond-liability of the administrator and his sureties, see, also, Aylett v. King, 11 Leigh, 486; Wilson v. Buchanan, 7 Grattan, 334; Talliafer v. Thornton, 6 Call, 21; Spottswood v. Dandridge, 4 Munf. 289; Burnett v. Harwell, 3 Leigh, 89; King v. Smith, 15 Ala. 264; Gould v. Hayes, 19 Ala. 438; Holley v. Acre, 23 Ala. 603; Amason v. Nash, 24 Ala. 279; Gray v. Jenkins, ib. 516. See, 1 Lomax on Ex’ors, 328-9; Irving v. Veitch, 3 Mees. & Wels. 104-5; Dowling v. Ford, 11 Mees. & Wels. 328; Burnet v. Cooper, 9 Beav. 252.
The liability, then, of the administrator and his sureties, resting, as it does in this case, on the statutes of limitation "which were of force before the Code became operative, there is no statute of limitations applicable to this case. Bedell v. Smith, 37 Ala. 548-554.
We have thus far treated this question as res imtegra. In the case of Rhodes v. Turner, (21 Ala. 210-217,) this court said: “ Our statutes fix no period as a limitation to proceedings against an executor or administrator in the orphans’ court, to compel him to come to a final settlement. We do not think that the six years’ statute, prescribed as.the limitation to actions at law for an account, and which, by analogy, the chancery court adopts, can apply; for the court here has the administration of the estate in progress, and the proceedings before it must be considered as infieri, [502]*502until tbe final settlement and discharge of the executor.” For the only limitation, or presumption of settlement, applicable to such eases, see McArthur v. Carrie, 32 Ala. 75; Austin v. Jordan, 35 Ala. 642.
Section 3928 of the Code goes very far to show that, when an administrator of an administrator is cited to settle his intestate’s administration, he can make no defense which his intestate could not have made. It provides that, “ for waste or conversion of the assets of a deceased person by the executor or administrator, his personal representative is liable in the same manner as the executor or administrator guilty of the devastavit would be liable, if living.”
[5.] The demurrer of the distributees to the ninth plea of the administrators, was also sustained. That plea avers, that the said Kirkland Harrison, in his lifetime, had “ duly distributed, according to law, and by order of the proper court, all of the property and assets of the said B. B. Harrison, which ever came to his hands as administrator of said estate.” This plea is defective. It is the duty of an administrator of an administrator to settle up the administration of his intestate, even if he has “distributed according to law, and by order of the proper court, ” all the available assets of the estate, unless he has also made a final settlement. In other words, the duty of an administrator to make final settlement of the estate administered, does not depend on the contingency of his having in his hands assets to be distributed. Orders of division, and partial or annual settlements, may divest all the effects out of the administrator’s hands, and still the right of the distributees to have account-current filed, audited, and decreed upon, will remain the same. It can not, otherwise, be certainly known, that the administrator has fully administered; and such settlement is due to the interest and safety of both the administrator and the distributees. The petition for citation to the administrators avers, that no settlement had been made of Kirkland Harrison’s administration; and this plea does not negative that averment.—See Code, § § 1876, et seq.; Pamphlet Acts, 1853-4, 24.
But it is not enough that the administrator distribute all the property and assets that have come into Ms hands. He [503]*503is required to be diligent in reducing to bis possession all tbe effects which reasonable care and vigilance can bring to his knowledge; and if he fail in thus possessing himself of assets that are available, he renders himself liable for the amount so lost.—Duffie v. Buchanan, 8 Ala. 27; Hughes v. Mitchell, 19 Ala. 268; Milam v. Ragland, ib. 88. This last ground, however, is not assigned as a ground of demurrer.
[6.] The question of election presents the next point for our consideration. The probate court allowed the distributees, against the objection of the administrators, to charge the estate of Kirkland Harrison with the hire of the ' slaves, rent of the lands, &c., instead of the net proceeds of the crops raised on the plantation during the years 1844 and 1845. No order appears to have been obtained by Kirkland Harrison to keep the estate together; and in such case, the general rule is, that those entitled to distribution may ratify, or not, at their pleasure, such unauthorized use of the property; and may either take the net proceeds of the crops, or recover rents and hires for the use of the property.—McCreliss v. Hinkle, 17 Ala. 459; Stewart v. Stewart, 31 Ala. 208-215; Kavanaugh v. Thompson, 16 Ala. 817.
Eor the administrators it is contended, that several of the distributees had previously elected to charge Kirkland Harrison’s estate with the proceeds of the crops of 1844 1845, and not with the rents and hires; and it is here contended that, in allowing the distributees, under these circumstances, to elect, the probate court erred. Eor the purpose of showing that the distributees had determined their election, the administrators put in evidence the record of proceedings had in the chancery court of Dallas, as follows:
Bill in chancery, filed in 1846, by Bobert and Amelia Bives and others, as distributees of B. B. Harrison, deceased, against Kirkland Harrison, administrator, to bring him to a settlement of his administration. Several orders of amendment and revivor were made; the bill was answered; a decretal order was made, staying proceedings in the probate court, and referring to the register the matter of taking and stating the account of the administration. The account was never taken; but all else, save [504]*504tbe execution of tbe reference, and tbe report and confirmation of it, seems to baye been done. If tbe suit bad been carried through those concluding stages, tbe administration would have been brought to a settlement. In this stage of tbe case, tbe bill was voluntarily dismissed by complainants in 1852. That bill sought to charge tbe administrator with the proceeds of tbe crops of 1844 and 1845.
We have been referred to a few of tbe authorities in regard to election of remedies, which state, as a principle, that tbe bringing of a suit, in tbe one right, is an election to abandon tbe other.—See Sawyer v. Wood, 3 Johns. Ch. 422; George v. Bossings 15 B. Mon. 565; Bond v. Hopkins, 1 Sch. & Lef. 441. See, also, 1 Tidd’s Pr. 10; Edw. on Bailments, 132; Bohannan v. Pope, 42 Maine, 97; 3 Com. Digest, 541; Lewis v. Dubose, 29 Ala. 221. None of tbe cited cases, however, presented tbe question of a suit commenced, and afterwards dismissed before final judgment. In fact, tbe remarks of tbe court in the cases from 42 Maine, 1 Sch. & Lef., 29 Ala., and 3 Johns. Ch., were made simply by way of illustration; for tbe question did not arise in either of those cases. Examining tbe cases referred to by Edwards, it will be seen that bis attention was directed to an entirely different subject. In tbe case from 15th B. Monroe, tbe suit then in process of adjudication was tbe 'Suit which it was held determined tbe election. That suit bad been decided in tbe court below, and was then under consideration on appeal. In tbe case of Lewis v. Dubose, tbe question did not arise; and it is not an authority for tbe position contended for. Hence, we feel authorized to say no authority has been cited in support of this argument, that is directly to tbe point; nor bave we been able to find any.
In very many cases it has been decided, that making a disposition of property in tbe one right, or recovering judgment, and obtaining satisfaction, does determine the election; for, in such case, tbe parties can not be placed in statu quo.—See 9 Viner’s Abr. 363; 3 Com. Dig., supra; 3 Bac. Abr. 314; Hooks v. Smith, 18 Ala. 338; Mosely v. Wilkinson, 24 Ala. 416; Fireman's Ins. Co. v. Cochran & Co., 27 Ala. 236; Butler v. O'Brien, 5 Ala. 316; Sheppard v. [505]*505Buford, 7 Ala. 94; Rotch v. Hawes, 12 Pick. 136; Southard v. Pope, 9 B. Mon. 264; Leonard v. Crommelin, 1 Edw. Ch. 206; Gest v. Flock, 1 Green, C. C. 115; Donaldson v. Kendall, 2 Geo. Rep. 231; Buttricke v. Broadhurst, 1 Ves. Jr. 171; S. C., 3 Bro. C. C. 88; Ex parte Warder, 3 Bro. C. C. 191; Ex parte Cator, ib. 216; Upshaw v. Upshaw, 2 Hen. & Munf. 381; Hewes v. Parkman, 20 Pick. 90; Rawson v. Turner, 4 Johns. 469; McElroy v. Mancius, 13 Johns. 121; Stuck v. Mackey, 4 Watts & Serg. 196; Hannah v. Swarner, 3 Watts & Serg. 223; Evans v. Iglehart, 6 Gill & Johns. 188; Wolfe v. Parham, 18 Ala. 441.
There is a class of cases in which a party, having an election of remedies, forfeits the one by interfering actively in the other, with a view to giving it effect, or of obtaining a benefit under it. They stand, however, on their own peculiar principles; and in none of them had the proceeding been dismissed; nor, indeed, had the party, who claimed the right to elect, the power of dismissing the proceedings. See Wilson v. Matthews, 32 Ala. 350; McCarty v. Gibson, 5 Grat. 307; Donelly v. Corbett, 3 Sel. 506; Phillips v. Allen, 8 B. & Cres. 477; Clay v. Smith, 3 Pet. 411; Norton v. Cook, 9 Conn. 314; Jones v. Horsey, 4 Maryland, 306; Lanahan v. Latrobe, 7 Md. 268; Blackman v. Green, 24 Ver. 17. This class of cases is controlled by principles that have no application to the question before us.
Where the acts relied on are of doubtful and indeterminate character, or are capable of being annulled and the parties left in statu quo, the courts will not force conclusions in order, thereby, to hold that an election has been made. In the case of Reaves v. Garrett, the dispositions of Mr. Garrett’s will left in his widow, afterwards Mrs. Beaves, the right to renounce the bequests of his will, and to claim certain slaves in her own right; or, to abide by the terms of the will, and surrender her title to her slaves. The will appointed her executrix. She propounded the will for probate, and had it proved, qualified as executrix, acted in that capacity for about fifteen months, returned the slaves in her inventory of the estate, charged herself in annual settlement with their appraised value, kept possession of all the property until her resignation as executrix, and once [506]*506declared that she intended to abide by the will, notwithstanding she was apprised of her adverse right. She then resigned the office of executrix, and set up claim to the slaves in her own right. We held that her right to the slaves was not barred or concluded by what she had said and done; and her election to claim against the will was upheld.—See 34 Ala. 561.
Where there is a privilege of election, the authorities go very far in maintaining the right of the party to be fully and perfectly informed of all the matters which go to make up the respective values of the interests, between which a choice is to be made, and of the facts as bearing on the question of those values. In a case where a widow had a right of election between the provisions of her husband’s will and the rights which the law Would.confer upon her, the court said, “Until the settlement of the estate, the law gives the wife the election. She has a right to know what she has to elect. Election is choice, and she is entitled to know correctly what she has to choose between. The eases have gone so far, that after the wife has made her election, and has received benefits under the will, she has been-allowed to retract and resort to her legal rights, when the estate has turned out differently from what it was believed and stated to be at the time of the election prematurely made.”—Hall v. Hall, 2 McC. Ch. 280. See, also, Harcum v. Hudnall, 14 Grat. 369; Wake v. Wake, 3 Bro. C. C. 255; Blann v. Crocheron, 20 Ala. 320; Ravencroft v. Eyles, 2 Wils. 294; Blann v. Crocheron, 19 Ala. 647; Spivey v. Morris, 18 Ala. 254; 1 Lead. Ca. in Eq. 300 to 303; Coleman v. Adams, at last term.
So jealous is the law of this right of election, when necessary to a full understanding of the facts, it has been decided that the party having the right may file a bill and have an account taken, that he may exercise the right understandingly.—See Pusey v. Desbouvrie, 3 Pre. Wms. 320-1; Butricke v. Broadhurst, 1 Ves. Jr., 161; Kidney v. Coussmaker, 12 Ves. 153; 1 Lead. Ca. Eq. 300. Mistaken or unsuccessful, suits have been ruled not to be an election. Reese v. Kirk, 29 Ala. 409; Deens v. Dunklin, 33 Ala. 47.
But there is a recognized and well-established principle [507]*507in the administration of the doctrine of election of remedies, which seems to prove, beyond controversy, that merely bringing a suit, without prosecuting it to final judgment, can not determine the right of election. It is known that there are many cases in which the remedies at law and in chancery are concurrent; and the party complaining may resort to either the one or the other. If he resort to both, and the proceedings are pending in each court at the same time, did any one ever suppose that the proceedings in the suit first commenced could be pleaded in abatement of the suit last commenced? Yet, if the bringing of a suit is the determination of the right of election, such plea would be evidently good. The practice in such cases is, to put the actor to his election, which remedy he will pursue, and to compel him to abandon the other.—Houston v. Sadler, 4 S. & P. 130; P. & M. Bank v. Borland, 5 Ala. 531; P. & M. Bank v. Walker, 7 Ala. 926; Pettijohn v. Williams, 2 Jones’ Eq. 302; McRae v. Singleton, 35 Ala. 297; 2 Lomax on Ex’ors, 508. We hold, that the petitioners in this case did not, in the proceedings in chancery, do enough to determine their election.—See Howard v. Bugbee, 25 Ala. 548; Vernon v. Marsh, 2 Green’s Ch. 502. See, also, Seabury v. Stewart, 22 Ala. 217-8; 1 Lead. Cases in Eq. 300.
[7.] We have announced, as the general rule, that if an administrator, without an order therefor, keep the estate together for a longer period than the statute expressly allows» [see Olay’s Dig. 196, § 19; Code, § 1900,] those entitled to distribution may ratify or not, at their pleasure, such unauthorized use of the property, and may take either the proceeds of the crops, or recover rents and hires for the use of the property. It is clear, that in the absence of an order of court for the purpose, the administrator had no authority to keep up the plantation during the years 1844 and 1845. It is contended, however, that the administrator stands excused for thus keeping up the plantation, by the following state of facts:
The administrator, in January, 1844, had advertised, and was about to sell the slaves. The order of court, authorizing the sale, does not specify the purpose of the sale; but the condition of the estate justifies us in assuming that [508]*508the contemplated sale was for división. It is manifest that tbe sale was not necessary for tbe payment of debts. Two orders of sale appear in tbe record; one dated March 27th, 1843, tbe day on which tbe administrator was appointed, and tbe other dated November 3d, 1843; each giving general authority and “leave to sell tbe personal property belonging to tbe estate of said deceased, according to law.” It is not shown that either of these orders was made on the application of the administrator; and according to the decisions of this court, (made in Wyatt v. Rambo, 29 Ala. 510; Ikelheimer v. Chapman, 32 Ala. 676; Hall v. Chapman, 35 Ala. 553,) the sale, if made, would have been void. On the eve of the proposed sale, the distributees filed their bill, alleging that a sale was unnecessary, either for division, or for any other purpose; and obtained an injunction restraining the sale; and it never was made.
At the November term, 1844, the distributees petitioned the orphans’ court for an order to divide the slaves of said estate; and at the December term following, the order was granted, and commissioners appointed. Why the division was not then made, the record does not inform us. At the close of the year 1845, another order for division was granted at the instance of Kirkland Harrison, the administrator ; and under this order the slaves were divided, and return made thereof to the February term, 1846, of the orphans’ court, and then confirmed.
Independent of the fact that the sale of the slaves, if made under the orders for that purpose, would have been void, we think there are very satisfactory reasons why the bill in chancery and injunction furnish no excuse to the administrator for keeping up the plantation. Whatever might be the effect of a sale upon the title of the property, as a question of abstract right, under the act of 1809, (Clay’s Dig. 223, § 13,) the administrator had no authority to sell slaves belonging to the estate, unless such sale was necessary to meet the wants of the administration, or to make distribution of the estate. Hence, it is conceivable that an administrator might place himself greatly in fault, while by a sale presenting the forms of law the title of the property would be divested out of the estate. Such was held to be [509]*509the case in Steele v. Knox, 10 Ala. 608; and such would have been the effect of a sale in this case, if the order had conformed to the rule laid down in Wyatt v. Rambo. That a sale is improper, unless required by the condition of the estate, is clearly declared in the case of Lay v. Lawson, 28 Ala. 390.—See, also, Anderson v. Fox, 2 Hen. & Munf. 245. The slaves of B. B. Harrison’s estate were divisible without a sale; and in the attempt to sell, the administrator was proceeding in violation of the law. It is difficult to believe that he could have been ignorant of his duty to divide, and not to sell the slaves. It is thus shown that, if the administrator had pursued the clearly defined line of his duty, neither the bill nor the injunction would have been necessary. He cannot excuse himself for one departure from duty, by showing that he was arrested in the attempt to commit another. Nor is any excuse offered, why the slaves and lands were not put to hire and rent, when the injunction was served, January 25th, 1844. We hold that the administrator is liable for hires and rents for the years 1844 and 1845, at the election of the distributees.
[8.] It is contended for appellants, that the estate of Kirkland Harrison should have been charged only with a gross sum for the hire of all the slaves, all the stock and the plantation implements, and the rent of the lands, as upon a hiring and lease' of the collective estate of E. B. Harrison. Our statutes go very far to show that it never was intended that a plantation, slaves and stock, should be let to hire by a single contract. The following are some of the arguments which sustain this view :
First: The dower-interest, which exists in a majority of estates, will necessarily detract very materially from the entirety and availability of most landed estates, and hinder the successful cultivation of most plantations. — Olay’s Digest, 172; Code, §§ 1359 to 1367. Second: Authority to keep up the plantation during the year of intestate’s death, [Olay’s Dig. 196, § 19; Code, § 1900,] and afterwards for a definite period, on obtaining an order of court therefor, [Olay’s Dig. 198, § 30 ; Code, § 1902,] furnishes strong persuasive argument to show that, in the absence of such fact, and without such order, the estate should not be kept [510]*510together.—See McCreliss v. Hinkle, 17 Ala. 459. Third: The implied authority to hire out negroes at the end of the first year,.who had, during that time, been reserved from hire because they were engaged in making a crop, was conferred as early as 1826.—Clay’s Dig. 196, § 19. The authority to rent the land was not conferred until 1889. — Clay’s Dig-199, § 36. It could not have been contemplated that the lands and negroes should be leased and hired together.
But this question is settled by the decisions of this court} and by the uniform practice of the country.
In the case of Steele v. Knox, 10 Ala. 614, a case which presented the question now before us, our predecessors said: “As the distributees have elected to charge him [the administrator] with the value of the use of the properly, he must pay hire for the slaves, according to the usual rates of hiring such slaves, in the customary mode during that period, and will be entitled to compensation for taking care of such as were helpless. And as he had the power to enter upon the land and rent it in virtue of the statute of 1839, he must be considered as having entered as administrator, and is therefore liable for the customary rent, in his official capacity, upon this settlement.” See, also, Benford v. Daniels, 13 Ala. 673; McCreliss v. Hinkle, 17 Ala. 465; Smith v. King, 22 Ala. 561; Montgomery v. Givhan, 24 Ala. 588; Stewart v. Stewart, 31 Ala. 207.
We have no hesitation in affirming that the customary mode of hiring in this State, never has justified an administrator in disposing by lease and hire, and by one single contract, of a large plantation with its stock and implements of husbandry, together with more than one hundred slaves. Such contract would carry on its face evidence of mal-administration; for few, if any bidders could be found to compete at such a letting.
[9.] It is settled in this State that in taking an account like the present one, interest is chargeable on the value of the rents and hires, from the date of their maturity.—Rowland v. Shelton, 25 Ala. 220; Stoudenmeier v. Williamson, 29 Ala. 569; Thompson v. Lee, 31 Ala. 308; Parker v. Parker, 33 Ala. 459; Mahone v. Williams, in MSS.
[10.] The question of interest charged against the estate of [511]*511Kirkland Harrison, on moneys of tbe estate collected by bim, is different from tbe one last considered. Of course, it could never bave been supposed tbat an administrator, settling tbe account of bis intestate, would or could take tbe exculpatory oatb, for which section 1813 of tbe Code provides. Hence, tbe rule which obtains in tbe case of administrators settling their accounts, does not apply.—See Brazeale v. Brazeale, 9 Ala. 407; King v. Cabiness, 12 Ala. 598, It is shown, in this case, tbat considerable sums came to tbe bands of tbe administrator; and, although be remained in tbe performance of bis functions for more than six years, we are not advised that be made any attempt to distribute tbe funds. We do not know, and can not affirm, what be did with tbe funds; but there are circumstances which tend to show tbat be blended them with bis own, and kept no separate account. Tbe probate court charged interest against tbe administrator, on moneys collected, from tbe date of tbe collection. In this, tbe court erred. “It would be laying too heavy a band upon executors says Chancellor Kent, “ to charge interest from tbe moment money was received.”—See Dunscombe v. Dunscombe, 1 Johns. Ch. 511. See, also, Royall v. McKenzie, 25 Ala. 363. As this case must go back for a re-statement of the account, we will content ourselves with a statement of tbe rule by which tbe probate court must be governed.
If it be shown tbat tbe administrator used tbe money of tbe estate for bis own purposes, then bis estate is responsible for tbe profit made, or for interest from tbe date of tbe use, at tbe election of tbe distributees. — Code, § 1813. If this be not shown, and this question be left as tbe present record presents it, then a different rule prevails. It is said tbat no absolute rule can be laid down, applicable alike to all cases ; but tbat it must be varied according to circumstances.—See Dunscombe v. Dunscombe, supra, and Royall v. McKenzie, supra, and authorities cited. It was certainly tbe duty of tbe administrator to retain tbe 'moneys not used in paying debts, until tbe expiration of eighteen months from tbe time of bis appointment, unless tbe known condition of tbe estate justified bim in reporting tbe estate solvent at an earlier day. — Code, sections 1821, and 1771-2. After-[512]*512tbe expiration of tbe eighteen months, unless there be special reasons to the contrary, we hold it was the dnty of the administrator to distribute, or, in some other legal mode, dispose of, or employ the funds of the estate ; and, if he faded to do so, that he is chargeable with interest, to commence at the termination of a reasonable time for such distribution or other disposition. Considering the condition of this estate and the distributees, we hold that six months was the proper period, after the expiration of the eighteen months, at the end of which time interest should commence to run. In re-stating the account, the probate court will compute interest according to the rule here declared.—See on this subject, Miller v. Beverly, 4 Hen. & Munf. 415; and Brazeale v. Brazeale, 9 Ala. 497.
[11.] We think the court erred in allowing the appraisement to be used as evidence of value. We are not advised that the administrator had, in any way, connected himself with it. It was but the sworn, ex-parte statement of third persons, and in no sense the act of the administrator. To allow such statement to conclude the rights of the administrator, would be a very dangerous innovation on the law of evidence. Having no right to cross-examine the appraisers as witnesses, their testimony, if it may be so called, should not have been received.—Miller v. Jones, 29 Ala. 175; Steele v. Knox, 10 Ala. 609; Brown v. Steele, 14 Ala. 63. We are aware that the Virginia court of appeals has decided this question differently, but their decision does not meet our approbation.—See Rogers v. Chandler, 3 Munf. 65.
[12.] The court did not err in receiving in evidenoe the certified statements from the chancery and circuit courts of Lowndes county. They were not only not objected to, but, in form, they were within the letter of the agreement of counsel; and, in substance, they were strictly within the rule which declares that judgments are evidence for and against the whole world, to establish the fact of their existence, and the amount for which they are rendered,—1 Greenl. Ev. § 527; Harrell v. Whitman, 20 Ala. 519; Snodgrass v. Br. Bank, 25 Ala. 161; Mervine v. Perkins, 18 Ala. 241; [513]*513Goodman v. Walker, 30 Ala. 480; Ansley v. Carlos, 9 Ala. 973; Moore v. Jones, 13 Ala. 296.
[13.] "We are satisfied with the valuation of the land-rents for 1844 and 1845. Some one or more of the years after 1845, the record shows that the administrator let the land to rent at the highest bidder. True, he let a large body of land at one time, and by one contract; but we cannot affirm that, under the circumstances, as then presenting themselves, this mode of letting did not appear to him to be most profitable to the estate. True, he became lessee himself of the most valuable plantation; but being one of the heirs-at-lawj this, without more, did not render the contract either void or voidable.—McLane v. Spence, 6 Ala. 894. There is not enough in this record to justify the judgment of the probate court, in charging against the administrator a greater amount than he realized at the public letting.
"We have not been able to discover the reasoning by which the probate judge ascertained and decreed the amount of the corn and fodder ; but it may be correct. On the subject of the cotton seed, we have the same remark to make, as to quantity; and, under the testimony reported, we doubt if the cotton-seed should have been considered as a marketable commodity, or any charge made for it.
[14.] As the distributees obtained the benefit of the hire of the horses and mules, and the proceeds of their sale, the administrator should not have been charged with the value of such as may have died, unless there was neglect, or inattention in the management, causing the death.—See Wilkinson v. Mosely, 30 Ala. 562.
In the account of sales of the cotton crop of 1843, there appears an account due the merchants, which was probably contracted for needed supplies consumed on the plantation during the year. If so, it should be allowed as a credit to the administrator.
The account of A. Borland should not have been charged against the administrator, under the proof found in the record. If we mistake not, this account was charged .. twice. Neither should the administrator have been chargbcf, with the note of J. J. McBae, under the proof made.-See [514]*514Craig v. McGehee, 16 Ala. 45. One of tbe pieces of evidence in tbe case of tbe claim against Draughau is not in tbe record; and, in its absence, we are not able to affirm that tbe court erred in reference to that item.
There is evidence that tbe carpenter Jack, or Jackson, was publicly hired out for that part of tbe year 1843 which remained after intestate’s death, for fifty-five dollars; and that Sam was hired for about tbe same amount. If this be tbe case, tbe administrator should not have been charged a greater sum for their hire for that time.
On tbe subject of negro hire for tbe years 1844 and 1845, we append to this opinion a catalogue of names and prices, which, we think, to be correct, according to the weight of the evidence. In fixing the hires of the women, allowance is made for abatement of the price-value, caused by pregnancy, or the encumbrance of nursing infants; and, hence, no farther credit should be allowed the administrator on that account.
We have disposed of every question which we deem material.
Reversed and remanded.