STONE, J".
— ¥e think the chancellen erred, in dismissing this bill for the want of equity. During the lifetime of Mr. Stewart, he had agreed with Mr. Gibson for an exchange of eighty acres of land; and pursuant to that agreement, each party had taken possession of the land thus obtained from the other. No title had been made by either; and hence, to perfect the exchange, a resort to some legal proceedings became necessary. The plan adopted in this case was an application by Mr. Owen, the administrator, to the orphans’ court for leave to sell the land which had fallen to Gibson in the exchange. The order was granted, the land sold, and Gibson became the purchaser. A title was afterwards made to Gibson; and he thereupon executed a conveyance to the heirs of Stewart of the eighty acres which fell to the latter in the exchange. The four hundred dollars purchase-money, the price at which Gibson had bid off his eighty acre tract, was not paid by him. In fact, this entire arrangement seems to have been entered into as a cheap and simple [213]*213method of quieting and perfecting the titles. The record tends strongly to show that, in the petition and order of sale, there is a misdescription of the numbers of the land which fell to Gibson. The proof is full and satisfactory, that the alleged exchange of lands was in fact made by Stewart and Gibson; and the proof is equally satisfactory, that the exchange was highly beneficial to Stewart and his heirs. The estate has had the benefit of the eighty acres obtained from Gibson; and we have no hesitation in holding, that the distributees of Stewart have no right to charge the administrator with the four hundred dollars, or any part of it, for which Gibson bid off his land.
Waiving the consideration of the question, whether an administrator can himself transfer the settlement of his administration to the court of chancery, a clear reason exists in this case for sustaining this bill. — See Mallett v. Dexter, 1 Curtis, 178; Horton v. Mosely, 17 Ala. 794; 1 Story’s Equity, § 544; Dement v. Boggess, 13 Ala. 140; Leavins v. Butler, 8 Porter, 880; Harrison v. Harrison, 9 Ala. 470; King v. Smith, 15 Ala. 264. In this case, the peculiar ground for equitable interposition is the matter of the exchange of lands above mentioned. The Led-betters, by their answer, do not admit the administrator’s right to perfect the exchange; but their answer tends strongly to show, that they are willing to charge him with the $400 purchase-money nominally promised by Gibson, and any other liability which, under strict rules of law, they can fasten upon him. In this contest, the court of probate is wholly inadequate to render complete justice ; and this gives the court of chancery jurisdiction, on the principle, that the court of chancery will legalize and sanction what the court itself would, on a proper application, have ordered to be done. — Elliott v. Horn, 10 Ala. 348; Wilson v. Sheppard, 28 Ala. 629.
This feature of the case gives the chancery court jurisdiction, according to the principles settled in Horton v. Mosely, 17 Ala. 794; and having jurisdiction for one purpose, this will draw to it the right to adjust the entire administration. — King v. Calhoun, 5 Ala. 523.
The bill alleges, that Judge Wallace, then the judge of [214]*214the orphans’ court of Lawrence county, made an order to keep the estate together under the act of 1835; but that conceiving it to be unnecessary to enter said order on the ■records of his coirrt, he made no entry or recoi’d thereof. The answer puts this averment in issue. The proof does not sustain this averment of the bill; but tends strongly to prove, that the construction placed on this statute by Judge Wallace was, that the act itself gave the authority to keep the estate together, without any order of the court to that effect. In this he evidently misapprehended the law. — See Clay’s Digest, p. 198, § 30. But, if the averment of the bill was proved, it would be wholly insufficient. The judgments of courts of record can only exist in the records of the court. They can not exist in parol, or be proved by oral evidence. Oral evidence is even wholly inadmissible, on an application to enter a judgment nunc pro tunc. — Hall v. Hudson, 20 Ala. 284; Hudson v. Hudson, ib. 364; Perkins v. Perkins, 27 Ala. 479.
• Hnder this view of the authorities, we feel it our duty to declare, that this administration must be settled, as if no order to keep the estate together had ever been asked for, or pretended to have been granted. It results, that the administrator was clothed with only the general powers of administrators, which, under our statutes existing when Owen was appointed, were, to collect together the assets, obtain an order, and under it sell the goods that were strictly perishable; pay the debts; and, if his intestate was engaged in planting, and died “after the first day of January,” to continue the servants or slaves of which he was possessed, and which were engaged in making a crop, on the plantation in the occupation óf decedent at the time of his death, until the last day of December following. — Clay’s Digest, 196, § 19. Further, if necessary, to obtain an order for the sale of so much of the personal estate as might be necessary for the payment of the debts; after exhausting the personal estate, to obtain an order and sell the real estate, if needed to pay debts; or to sell land in preference to slaves, if it be made to appear that the estate of the decedent, or those entitled to inherit the same, would be less injured thereby. — Clay’s'Digest, 223, [215]*215§ IB; ib. 195, § 18; ib. 224, §§ 16, 17, 18, et seq. After eighteen months, the distributees had the right to call for distribution, unless some special reason existed for greater delay. — Digest, 196-7, §§ 23, 24; 2 'Williams on Ex’rs, 640-9 ; 2 Kent’s Com. 415-20.
We believe we have given an outline of the general duties of administrators, as they existed in 1834. They had no authority to keep up the planting interest, longer than the close of the year during which decedent died. The act of 1835 only gave them such authority, when they obtained an order therefor. That was not done in this case; and hence the continuance of the planting interest, after the year 1834, was unauthorized and illegal.
Arriving at these conclusions, it follows necessarily, that the distributees are' clothed with the option of ratifying the unauthorized act of the administrator. Should they do so, they will be entitled to distribution out of the proceeds of the plantation, after deducting for all reasonable expenses and charges. Or, they may elect to hold the administrator accountable for the rent of the land, the hire of the slaves, and other property employed by him in planting, after the year 1834, up to the time of the sale. This election they must announce before entering upon the accounts; and if they, or any number of them, elect to proceed for rent of the land and hire of the slaves, they will not be entitled to any of the proceeds of the plantation after the first year. The election must be entire and indivisible. In other words, neither of the distributees will be permitted to claim any interest in the proceeds of the plantation for the years 1835-6-7, and hire or rent for any pai’t of said time. No one distributee will be permitted both to ratify and renounce the continuance of the plantation.
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STONE, J".
— ¥e think the chancellen erred, in dismissing this bill for the want of equity. During the lifetime of Mr. Stewart, he had agreed with Mr. Gibson for an exchange of eighty acres of land; and pursuant to that agreement, each party had taken possession of the land thus obtained from the other. No title had been made by either; and hence, to perfect the exchange, a resort to some legal proceedings became necessary. The plan adopted in this case was an application by Mr. Owen, the administrator, to the orphans’ court for leave to sell the land which had fallen to Gibson in the exchange. The order was granted, the land sold, and Gibson became the purchaser. A title was afterwards made to Gibson; and he thereupon executed a conveyance to the heirs of Stewart of the eighty acres which fell to the latter in the exchange. The four hundred dollars purchase-money, the price at which Gibson had bid off his eighty acre tract, was not paid by him. In fact, this entire arrangement seems to have been entered into as a cheap and simple [213]*213method of quieting and perfecting the titles. The record tends strongly to show that, in the petition and order of sale, there is a misdescription of the numbers of the land which fell to Gibson. The proof is full and satisfactory, that the alleged exchange of lands was in fact made by Stewart and Gibson; and the proof is equally satisfactory, that the exchange was highly beneficial to Stewart and his heirs. The estate has had the benefit of the eighty acres obtained from Gibson; and we have no hesitation in holding, that the distributees of Stewart have no right to charge the administrator with the four hundred dollars, or any part of it, for which Gibson bid off his land.
Waiving the consideration of the question, whether an administrator can himself transfer the settlement of his administration to the court of chancery, a clear reason exists in this case for sustaining this bill. — See Mallett v. Dexter, 1 Curtis, 178; Horton v. Mosely, 17 Ala. 794; 1 Story’s Equity, § 544; Dement v. Boggess, 13 Ala. 140; Leavins v. Butler, 8 Porter, 880; Harrison v. Harrison, 9 Ala. 470; King v. Smith, 15 Ala. 264. In this case, the peculiar ground for equitable interposition is the matter of the exchange of lands above mentioned. The Led-betters, by their answer, do not admit the administrator’s right to perfect the exchange; but their answer tends strongly to show, that they are willing to charge him with the $400 purchase-money nominally promised by Gibson, and any other liability which, under strict rules of law, they can fasten upon him. In this contest, the court of probate is wholly inadequate to render complete justice ; and this gives the court of chancery jurisdiction, on the principle, that the court of chancery will legalize and sanction what the court itself would, on a proper application, have ordered to be done. — Elliott v. Horn, 10 Ala. 348; Wilson v. Sheppard, 28 Ala. 629.
This feature of the case gives the chancery court jurisdiction, according to the principles settled in Horton v. Mosely, 17 Ala. 794; and having jurisdiction for one purpose, this will draw to it the right to adjust the entire administration. — King v. Calhoun, 5 Ala. 523.
The bill alleges, that Judge Wallace, then the judge of [214]*214the orphans’ court of Lawrence county, made an order to keep the estate together under the act of 1835; but that conceiving it to be unnecessary to enter said order on the ■records of his coirrt, he made no entry or recoi’d thereof. The answer puts this averment in issue. The proof does not sustain this averment of the bill; but tends strongly to prove, that the construction placed on this statute by Judge Wallace was, that the act itself gave the authority to keep the estate together, without any order of the court to that effect. In this he evidently misapprehended the law. — See Clay’s Digest, p. 198, § 30. But, if the averment of the bill was proved, it would be wholly insufficient. The judgments of courts of record can only exist in the records of the court. They can not exist in parol, or be proved by oral evidence. Oral evidence is even wholly inadmissible, on an application to enter a judgment nunc pro tunc. — Hall v. Hudson, 20 Ala. 284; Hudson v. Hudson, ib. 364; Perkins v. Perkins, 27 Ala. 479.
• Hnder this view of the authorities, we feel it our duty to declare, that this administration must be settled, as if no order to keep the estate together had ever been asked for, or pretended to have been granted. It results, that the administrator was clothed with only the general powers of administrators, which, under our statutes existing when Owen was appointed, were, to collect together the assets, obtain an order, and under it sell the goods that were strictly perishable; pay the debts; and, if his intestate was engaged in planting, and died “after the first day of January,” to continue the servants or slaves of which he was possessed, and which were engaged in making a crop, on the plantation in the occupation óf decedent at the time of his death, until the last day of December following. — Clay’s Digest, 196, § 19. Further, if necessary, to obtain an order for the sale of so much of the personal estate as might be necessary for the payment of the debts; after exhausting the personal estate, to obtain an order and sell the real estate, if needed to pay debts; or to sell land in preference to slaves, if it be made to appear that the estate of the decedent, or those entitled to inherit the same, would be less injured thereby. — Clay’s'Digest, 223, [215]*215§ IB; ib. 195, § 18; ib. 224, §§ 16, 17, 18, et seq. After eighteen months, the distributees had the right to call for distribution, unless some special reason existed for greater delay. — Digest, 196-7, §§ 23, 24; 2 'Williams on Ex’rs, 640-9 ; 2 Kent’s Com. 415-20.
We believe we have given an outline of the general duties of administrators, as they existed in 1834. They had no authority to keep up the planting interest, longer than the close of the year during which decedent died. The act of 1835 only gave them such authority, when they obtained an order therefor. That was not done in this case; and hence the continuance of the planting interest, after the year 1834, was unauthorized and illegal.
Arriving at these conclusions, it follows necessarily, that the distributees are' clothed with the option of ratifying the unauthorized act of the administrator. Should they do so, they will be entitled to distribution out of the proceeds of the plantation, after deducting for all reasonable expenses and charges. Or, they may elect to hold the administrator accountable for the rent of the land, the hire of the slaves, and other property employed by him in planting, after the year 1834, up to the time of the sale. This election they must announce before entering upon the accounts; and if they, or any number of them, elect to proceed for rent of the land and hire of the slaves, they will not be entitled to any of the proceeds of the plantation after the first year. The election must be entire and indivisible. In other words, neither of the distributees will be permitted to claim any interest in the proceeds of the plantation for the years 1835-6-7, and hire or rent for any pai’t of said time. No one distributee will be permitted both to ratify and renounce the continuance of the plantation.
While we feel it our duty to declare the law as above ■stated, the record abundantly shows that Owen acted under the honest conviction that he was authorized to keep the estate together under the act of 1835; that he managed the estate prudently and successfully ; and that the consequence of his management has been to pay the estate out of its embarrassments, to support and rear tire [216]*216family, and to save for them a considerable patrimony; whereas, if he had pursued the ordinary course, we think there would have been little or nothing left for the support of the family, or for distribution. Under these circumstances, we have to regret the necessity, which the law casts on us, of enforcing a rule which we think cupidity is mainly instrumental in invoking.
If the distributees so elect, the administrator must be held to the first sale made of the perishable and personal property, and will not be allowed to charge the estate for the re-purchase he made from Mrs. Stewart. That was made, as we have seen, without authority; and the dis-tributees are not bound to ratify or accept it. If the administrator be held to the first sale, he must not be charged for the subsequent use of that property, or with its proceeds on the second sale. Neither will lie, in that event, be chargeable with the proceeds of any property which he received in exchange for the property bought back by him from Mrs. Stewart.
"We know of no principle of law, which will authorize the administrator to set off the debt due from Win. B. Jenkins and others, against the distributive interest due to the estate of Mrs. Maria Jenkins, his late wife. That distributive interest, so far as the same remains unpaid, is but a chose in action; and Jenkins, not having reduced it to possession during the continuance of the coverture, can not assert his marital rights over it after the termination of the coverture by the death of Mrs. Jenkins. — Montgomery v. Givhan, 24 Ala. 568; Bibb v. McKinley, 9 Por. 636 ; Andrews v. Jones, 10 Ala. 442.
Under the pleadings in this case, we do not think the complainant places himself in a condition to dispute his liability for the Jenkins debt. That debt was created in the purchase of property from the administrator; and he, the administrator, took the note. Prima facie, he is chargeable with the amount of the sale-bill, and he has given no reason why he should not be charged with this item. The averment is, that this claim “proved insolvent.” It is not averred that the makers of this note were either solvent, or reputed to be solvent, at the time the note was executed. [217]*217Tbe administrator must be charged with this item. But the debt of Pleasant Craddock stands on a different principle. If that suit was successfully defended, as to a part of the demand; and the loss is not imputable to the fault or laches of the administrator, it should not be charged against him. This question is referred to the registrar.
The rule in regard to commissions, as settled by repeated decisions of this court, is to allow them, “except in cases of gross negligence, or willful default.” — Gould v. Hays, 19 Ala. 438; Carroll v. Moore, 7 Ala. 617; Phillips v. Thompson, 9 Por. 667; Powell v. Powell, 10 Ala. 914; Emanuel v. Draughan, 14 Ala. 302. Under this rule, the administrator is clearly entitled to commissions in this case, to the extent after stated.
The decree of the chancellor is reversed; and this court, proceeding to render such decree as should have been rendered in the court below, doth hereby order, adjudge, and decree, that the said administration be settled in the chancery court of Lawrence, according to the principles of this opinion. In taking the account, the registrar will state the account first between the administrator and the estate. lie will charge the administrator with all the assets that have come to his hands, according to the principles of this opinion, and he will credit him with all the debts of the estate of the said Stewart, which have been paid by him. He will also credit him with the expenses of the plantation for the year 1834, and allow him reasonable compensation for any special and extra attention he may have bestowed in and about the plantation during the year 1834. — See Pinckard v. Pinckard, 24 Ala. 250. So, if the distributees elect to ratify the unauthorized continuance of the plantation, and take the proceeds of the crops, the administrator will likewise be entitled to like compensation for his reasonable care and expenses in keeping up the plantation afterwards. If, however, they elect to hold him accountable for the rent of the land, and the hire of the negroes and other property, then the administrator will be entitled to no commissions on those items for the years 1835, 1836, and 1837.
The administrator must be allowed 5 per cent, com[218]*218missions on all the money assets of the estate wliieh he-reduced, to possession, except for the rent of land and hire of negroes for the years 1835-6-7, if the distributees elect to charge him for them. He is also entitled to a credit of 2-J- per cent, commissions on all sums of money paid out by him in extinguishment of the debts of the intestate, and the expenses of the plantation during the year 1834, He is also entitled to a reasonable allowance, to be fixed by the registrar on proof, for any special services he may have rendered, and expenses he may have incurred, in the prosecution or defense of litigation in which the estate was involved, unless such litigation was brought about by the fault or the laches of the administrator. — Bendall v. Bendall, 24 Ala. 295. The registrar will also make him any other proper allowances to which he may he entitled.
After adjusting the general administration and its accounts, the registrar will proceed to state an account against each distributee who comes in and claims distribution. He will charge each with all reasonable expenses, board, clothing, education, and all other payments and expenses incurred for the benefit of such distributee; the same to be settled after hearing such proofs as may be offered on these points. The registrar will also allow him five per cent, commissions on all sums of money which he expended and incurred for the support, education and maintenance of such distributee. Any moneys paid by him to the guardians of the distributees, towards their distributive interests, stand on a different principle. On these the administrator is entitled to no commissions.
Let the costs of this appeal be paid by the appellees; and let the costs in the court below be decreed by the chancellor, on the coming in and confirmation of the report.