R. W. WALKER, J.
It is obvious tbat tbe only questions, wbicb tbe parties intended to raise by tbe pleadings and evidence, were as to tbe fact and effect of tbe alleged payment to Sims. Tbe chancellor, however, without considering these questions, held, tbat tbe executors took tbe charitable bequest of $2,000 as trustees; tbat tbe probate court bad no jurisdiction to declare these bequests invahd, or lapsed; and, tbat, for this reason, its decree distributing tbe fund Was void. Tbe case of Harrison v. Harrison, (9 Ala. 470,) wbicb is cited in support of this view, does not sustain it. We are satisfied tbat, in tbat case, tbe court intended to go no further upon this subject, than to deny to tbe probate court jurisdiction to enforce or settle trusts created by will. It seems clear, tbat tbe court of probate, in exercising its jurisdiction to administer estates, must have tbe power of passing upon tbe validity of tbe bequests of a will, even though they create, or are coupled with, trusts conferred upon tbe executors, or on third persons. Tbe authority of tbe court to do this was not questioned in tbe case referred to. On tbe contrary, in tbat very case, tbe right of tbe court to declare .the invalidity of a bequest creating a trust, is expressly recognized. — See pages 475, 477-8. Nor do we see any reason to doubt tbe authority of tbe probate court to pass upon the vabdity of a bequest to charitable uses. If such a bequest is invalid, it cannot bar an application for distribution by tbe next of kin, or tbe residuary legatee, as tbe one or tbe other may be entitled ; and tbe court would be incompetent to make distribution among those entitled, if it has not tbe power to decide upon tbe validity of such a bequest when interposed as a bar to distribution. — See Alston v. Coleman, 7 Ala. 795; May v. May, 28 Ala. 141 (152); Gould v. Hayes, 19 Ala. 449 ; Carroll v. Brumby, 13 Ala. 102 ; Billingsley v. Harris, 17 Ala. 214; Gerald v. Bunkley, ib. 170, 177. It follows, tbat tbe mere fact tbat these were charitable bequests, or so designed, and tbat tbe executor was appointed trustee to carry them out, did not impair tbe authority of tbe probate court to determine whether they were void, or bad lapsed.
2. Sims, to whom tbe payment is alleged to have been [147] made, was the sole distributee of Mrs. Johnson, and - her estate owed no debts. Mrs. Johnson died in 1852, and in February, 1853, Lewis Johnson was appointed her administrator. He died in 1854, and the defendant Dennis was, in March, 1859, (1855?) appointed administrator de bonis non. Where there is a sole distributee, and the estate owes no debts; and, before the administration granted, the property is reduced to possession by the distributee, he will in equity be protected in the possession against the claim of an administrator subsequently appointed.—Vanderveer v. Alston, 16 Ala. 494; Marshall v. Crow, 29 Ala.; Spann v. Jennings, 1 Hill’s Ch. 324; Henson v. Wallace, 1 Rich. Eq. 22; Walker v. May, 1 Bailey’s Eq. 58; Lewis v. Lyons, 13 Ill. 117; Maxwell v. Craft, 32 Miss. 307; Anderson v. Brunefield, ib. 107; Bogart v. Furman, 10 Paige, 496; Lacy v. Williams, 8 Texas, 182. In like manner, a bona fide payment to the sole distributee, of a fund to which such estate is entitled, made before administration granted, would operate in equity a dischage of the party paying from liability to an administrator subsequently appointed. But the authority of the probate court to grant administration, even though there is but one distributee, and the estate owes'no debts, cannot be questioned; nor can it be doubted, that when such administration is granted before the property has been reduced to possession by the dis-tributee, the rights of the administrator are, as to the personal estate, exclusive, and he alone can give a valid discharge upon payment of a demand due the intestate.— Beattie v. Abercrombie, 18 Ala. 9 ; Jenkins v. Fryer, 4 Paige, 51. Hence, a payment to the sole distributee, while there is a pending administration, is tortious, as against the administrator, and cannot work a discharge of the liability, or constitute a ground of relief in equity. "Whether the rule might be different, in case the payment were made, bona fide, under a mistake of fact, not arising from neglect, as to there having been a grant of administration, we need not now inquire. Neither is it necessary for us to determine whether a court of chancery would require the sole distributee to pay over all money received by him, after administration granted, merely that the administrator may [148] be paid, bis costs and commissions. Tbe contest bere is between tbe administrator and tbe debtor; and certainly it would be contrary to legal principle, as well as productive of mucb confusion, to allow parties owing an estate to pass by tbe administrator, whose right to collect is universally known to be exclusive, and make payment direct to tbe distributee.
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R. W. WALKER, J.
It is obvious tbat tbe only questions, wbicb tbe parties intended to raise by tbe pleadings and evidence, were as to tbe fact and effect of tbe alleged payment to Sims. Tbe chancellor, however, without considering these questions, held, tbat tbe executors took tbe charitable bequest of $2,000 as trustees; tbat tbe probate court bad no jurisdiction to declare these bequests invahd, or lapsed; and, tbat, for this reason, its decree distributing tbe fund Was void. Tbe case of Harrison v. Harrison, (9 Ala. 470,) wbicb is cited in support of this view, does not sustain it. We are satisfied tbat, in tbat case, tbe court intended to go no further upon this subject, than to deny to tbe probate court jurisdiction to enforce or settle trusts created by will. It seems clear, tbat tbe court of probate, in exercising its jurisdiction to administer estates, must have tbe power of passing upon tbe validity of tbe bequests of a will, even though they create, or are coupled with, trusts conferred upon tbe executors, or on third persons. Tbe authority of tbe court to do this was not questioned in tbe case referred to. On tbe contrary, in tbat very case, tbe right of tbe court to declare .the invalidity of a bequest creating a trust, is expressly recognized. — See pages 475, 477-8. Nor do we see any reason to doubt tbe authority of tbe probate court to pass upon the vabdity of a bequest to charitable uses. If such a bequest is invalid, it cannot bar an application for distribution by tbe next of kin, or tbe residuary legatee, as tbe one or tbe other may be entitled ; and tbe court would be incompetent to make distribution among those entitled, if it has not tbe power to decide upon tbe validity of such a bequest when interposed as a bar to distribution. — See Alston v. Coleman, 7 Ala. 795; May v. May, 28 Ala. 141 (152); Gould v. Hayes, 19 Ala. 449 ; Carroll v. Brumby, 13 Ala. 102 ; Billingsley v. Harris, 17 Ala. 214; Gerald v. Bunkley, ib. 170, 177. It follows, tbat tbe mere fact tbat these were charitable bequests, or so designed, and tbat tbe executor was appointed trustee to carry them out, did not impair tbe authority of tbe probate court to determine whether they were void, or bad lapsed.
2. Sims, to whom tbe payment is alleged to have been [147] made, was the sole distributee of Mrs. Johnson, and - her estate owed no debts. Mrs. Johnson died in 1852, and in February, 1853, Lewis Johnson was appointed her administrator. He died in 1854, and the defendant Dennis was, in March, 1859, (1855?) appointed administrator de bonis non. Where there is a sole distributee, and the estate owes no debts; and, before the administration granted, the property is reduced to possession by the distributee, he will in equity be protected in the possession against the claim of an administrator subsequently appointed.—Vanderveer v. Alston, 16 Ala. 494; Marshall v. Crow, 29 Ala.; Spann v. Jennings, 1 Hill’s Ch. 324; Henson v. Wallace, 1 Rich. Eq. 22; Walker v. May, 1 Bailey’s Eq. 58; Lewis v. Lyons, 13 Ill. 117; Maxwell v. Craft, 32 Miss. 307; Anderson v. Brunefield, ib. 107; Bogart v. Furman, 10 Paige, 496; Lacy v. Williams, 8 Texas, 182. In like manner, a bona fide payment to the sole distributee, of a fund to which such estate is entitled, made before administration granted, would operate in equity a dischage of the party paying from liability to an administrator subsequently appointed. But the authority of the probate court to grant administration, even though there is but one distributee, and the estate owes'no debts, cannot be questioned; nor can it be doubted, that when such administration is granted before the property has been reduced to possession by the dis-tributee, the rights of the administrator are, as to the personal estate, exclusive, and he alone can give a valid discharge upon payment of a demand due the intestate.— Beattie v. Abercrombie, 18 Ala. 9 ; Jenkins v. Fryer, 4 Paige, 51. Hence, a payment to the sole distributee, while there is a pending administration, is tortious, as against the administrator, and cannot work a discharge of the liability, or constitute a ground of relief in equity. "Whether the rule might be different, in case the payment were made, bona fide, under a mistake of fact, not arising from neglect, as to there having been a grant of administration, we need not now inquire. Neither is it necessary for us to determine whether a court of chancery would require the sole distributee to pay over all money received by him, after administration granted, merely that the administrator may [148] be paid, bis costs and commissions. Tbe contest bere is between tbe administrator and tbe debtor; and certainly it would be contrary to legal principle, as well as productive of mucb confusion, to allow parties owing an estate to pass by tbe administrator, whose right to collect is universally known to be exclusive, and make payment direct to tbe distributee.
8. Tbe only witnesses examined to prove tbe payment, are J. M. Longmire, and Sarah J. Longmire. Of these two, tbe former is successfully impeached by tbe testimony introduced by the defendant; and tbe latter is incompetent, because her husband (who is a party to tbe suit) was a co-executor with tbe complainant, and jointly bable with him on bis bond as executor.— Wilson v. Sheppard, 28 Ala. 278; 1 Greenl. Ev. §§ 335, 341. But Sims, tbe sole distributee, is a party to tbe suit; and a decree pro confesso was taken against him, which has tbe same effect as an answer admitting tbe allegations of tbe bib. And it is insisted for tbe complainant, that as Dennis, tbe administrator de bonis non, is, as to tbe whole* fund in controversy, a mere trustee for Sims, this admission by Sims, tbe cestui qvi trust, of tbe fact of payment,, is sufficient proof of it as against Dennis, tbe trustee. It is true, as a general rule, that where one person is shown to be a mere trustee for another, tbe decree pro confesso against tbe latter will dispense with proof against tbe former. — See Hartley v. Bloodgood, 16 Ala. 233 ; Julian v. Reynolds, 8 Ala. 683; Moore v. Hubbard, 4 Ala. 192 ; Johnson v. McGillory, 1 J. J. Marsh. 321; Koen v. White, Meigs, 358. But this principle is not applicable to this case. Tbe abeged payment to Sims, tbe sole distributee of Mrs. Johnson, if made at ab, must have been either before or after tbe appointment of her administrator ; and tbe answer to tbe question whether before or after that time, must determine tbe legality of tbe payment. Tbe payment, if made, was either entirely right, or entirely wrong; entirely right in such a case as this, if made before administration; entirely wrong, if made after-wards ; for it would subvert tbe whole theory of administrations, if we were to permit a mere stranger to distribute an estate, in usurpation of tbe functions of tbe legaby ap[149] pointed personal representative. II, then, this fund bas been paid to Sims, tbe right of tbe administrator now to recover it depends upon tbe time of sucb payment. It is an important fact in tbe case, shown by tbe pleadings, that this fund constitutes tbe whole unadministered estate of Mrs. Johnson. Hence, if tbe administrator bas tbe right to receive it, be will not be a mere trustee for Sims, as to tbe whole amount, for it will be chargeable in bis bands with tbe proper costs of administration. It would be so chargeable, even in tbe bands of tbe distributee, if paid to him after administration granted. There is then, in tbe settlement of tbe question as to when tbe alleged payment was made, an antagonism of interest between tbe administrator and tbe distributee. A party cannot be allowed by bis own evidence to relieve a fund in which be is interested from what another claims to be a legal charge upon it. So, where tbe question is as to whether, or to what extent, a party claiming a fund is trustee for another, tbe admission of tbe cestui que trust is not evidence against tbe trustee, and tbe facts establishing tbe existence or tbe extent of tbe trust, as tbe case may be, must be otherwise proved. If it were shown by evidence 'aliunde that tbe payment to Sims, if made at all, must have been made before administration, then tbe decree pro confesso against Sims might be evidence against tbe administrator, of tbe fact of payment. But there is no sucb independent testimony, there being, as we have seen, no other evidence on tbe question of payment, to which we can look. We have, then, tbe question of an admission by tbe beneficiary, which, on one hypothesis, is, and on tbe other is not, evidence against tbe administrator, with no proof of either hypothesis save tbe admission itself. In sucb case, tbe party asserting tbe competency of tbe evidence must fail, because be fails to solve tbe doubt, tbe removal of which is a condition precedent to tbe admissibility of tbe evidence. It follows, that tbe decree pro confesso against Sims is not evidence against tbe administrator, of a payment to Sims before administration granted; and consequently, according to tbe principles above laid down, the complainant bas not made out a case for rebel
Reversed and remanded.