PHELAN, J.
This was an action for money bad and received. Tbe main facts of tbe case are these: David A. Steele, who was tbe administrator of tbe estate of Benjamin Mock, deceased, reported tbe estate as insolvent, and it was so declared or decreed by tbe probate court of Lowndes county. Among tbe claims filed against tbe estate was one for $1602 09, filed by tbe appellant, Eliza Walker. This was in tbe form of a judgment originally obtained by Emanuel & Gaines against Bobert Lowe, George Walker, and Benjamin Mock, tbe intestate of said Steele, administrator ; and was then tbe property of said Eliza Walker. Previous to tbe filing of said claim, tbe said judgment bad been fully paid and satisfied by a sale under execution of tbe property of George Walker, one of tbe defendants in tbe judgment. Tbe estate of Benjamin Mock, though declared insolvent, was found in fact not to be so; and tbe probate court proceeded to settle and decree distribution among tbe lawful distributees of said estate, as of a solvent estate, it being shown that all tbe debts due by tbe estate bad been paid and satisfied. Among tbe debts shown to [574]*574be paid was tbis claim of Mrs. Walker ; and, on settlement, tbe amount of it was allowed to tbe administrator, Steele, as a lawful credit. At tbe time tbis payment was made by Steele, be was entirely ignorant of tbe fact tbat said judgment bad been previously paid as aforesaid, as were also tbe probate court and tbe distributees at tbe time of tbe settlement. Upon said settlement, tbe said administrator was discharged by tbe decree of tbe court from bis said administration.
But two points are raised by tbe various charges given by tbe court, or those refused; and these relate, 1st, to tbe competency of tbe administrator, Steele, as a witness for the plaintiff below, tbe administrator de bonis non of Mock; and, 2dly, to tbe legal effect of tbe settlement by tbe probate court of Lowndes, of tbe administration of said Mock’s estate as a solvent estate, tbe same having been previously declared an insolvent estate, and tbe claim of Mrs, Walker filed against it as such.
[1.] We think there can be no doubt as to tbe competency of Steele as a witness for tbe plaintiff below, who was administrator de bonis non of Mock’s estate. Tbe Code has introduced upon tbe subject of tbe competency of witnesses tbe rule for our guidance. Tbe witness is declared competent, “unless tbe verdict and judgment would be evidence for him in another suit.” We can imagine no case in which tbe verdict and judgment in the suit below could be evidence for tbe witness Steele “in another suit”; and must, therefore, bold tbat be was a competent witness for tbe administrator de bonis mow.—Code, § 2302; Harris v. Plant & Co., 31 Ala. 639.
{2.] We come nest to consider tbe legal effect of tbe proceedings in tbe probate court, in connection with tbe claim filed by Mrs. Walker. If tbe fact tbat tbe estate of Mock was declared or decreed an insolvent estate, and tbat tbis claim was duly filed against it as such, and was afterwards paid by Steele, tbe administrator, in tbe manner above stated, makes out a case of res adjudicata, then tbe court erred, both in tbe instructions given, and also in its refusal to instruct as requested by defendant; if not, tbe instructions were properly given, and tbe requests properly refused. [575]*575II it was res adjudicata, it cannot be assailed and set aside in any collateral proceeding; if it was not, then tbe payment of tbe claim by Steele, as administrator, mero motu, and without any decree of tbe probate court, would leave it in tbe condition of any other case where money is paid by mistake, which makes the payee a trustee for the payer, and raises an implied promise to pay it back, on which suit may be instituted as upon any other like promise.
And, first, let us ascertain what is the nature of the order or decree of the probate court, declaring an estate insolvent. This court, in the case of Middleton’s Adm’r v. Maull’s Adm’r, (16 Ala. 479,) said, that such an order or decree is only interlocutory. From its very nature it must be, for it settles nothing as to the validity or amount of any claim. All it is intended to effect is to establish with reasonable certainty the ground upon which the court shall proceed in the settlement of an estate. Is the estate solvent or insolvent, becomes an important preliminary question, which must be ascertained before the court can proceed with the actual settlement or final determination of the rights of the parties. This is done with certain formalities; but the whole proceeding is but preliminary to the main matter, which is the settlement of the respective rights of the administrator de bonis non and the several claimants. Where the question of solvency is contested, the statute gives a right of appeal, it is true; but this does not change the character of such a contest, or the decision upon it. The same statute gives the right of appeal from an order or decree of the probate court appointing or removing an executor or administrator, and this was surely never esteemed anything but an interlocutory order. The order or decree declaring an estate insolvent is, then, merely interlocutory in its character, and if res adjudicata, is only so on the simple question of the solvency of the estate.
The estate of Mock, as shown by the record, was declared insolvent on the first day of November, 1849. After this, as the law then stood under the act of 1843, claimants were allowed six months to file their claims; and all claims not so filed were to be forever barred, unless the assets were more than sufficient to pay such claims, when the surplus, [576]*576as it was beld under that act, in Middleton’s Adm’r v. Maull’s Adm’r, (16 Ala. 479,) was to be distributed to such creditors as had filed their claims against the administrator within eighteen months, although they had neglected to file them as claims against the insolvent estate within six months from the declaration of insolvency. Since the Code went into operation, and under the terms employed in the Code, we may remark, a different rule has been observed. As the law and the decisions under it now stand, all claims which are not filed within six months from the declaration or decree of insolvency are forever barred; and if the estate proves solvent, and there is any surplus left, it must be apportioned among the distributees of the estate.—See Puryear v. Puryear, 31 Ala. 555, and cases there cited.
This claim, it appeared, was filed on the 27th of April, 185*0, within the six months. On the 18th of February, 1856, the claim was paid by Steele, the administrator; and in September, 1856, Steele, as administrator, made a final settlement of his administration of said estate, in which he was allowed the payment of this claim as a credit. There was a surplus in his hands after the payment of all the claims against the estate, and this surplus was decreed to the distributees, who were all before the court; and he was finally discharged from his administration. It would thus appear from the record, that no administrator de bonis non was appointed, as the act of 1843 provides may be done; but that, as that act also provides, the administrator, Steele, “was continued in office”, to conduct and settle it as an insolvent estate.
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PHELAN, J.
This was an action for money bad and received. Tbe main facts of tbe case are these: David A. Steele, who was tbe administrator of tbe estate of Benjamin Mock, deceased, reported tbe estate as insolvent, and it was so declared or decreed by tbe probate court of Lowndes county. Among tbe claims filed against tbe estate was one for $1602 09, filed by tbe appellant, Eliza Walker. This was in tbe form of a judgment originally obtained by Emanuel & Gaines against Bobert Lowe, George Walker, and Benjamin Mock, tbe intestate of said Steele, administrator ; and was then tbe property of said Eliza Walker. Previous to tbe filing of said claim, tbe said judgment bad been fully paid and satisfied by a sale under execution of tbe property of George Walker, one of tbe defendants in tbe judgment. Tbe estate of Benjamin Mock, though declared insolvent, was found in fact not to be so; and tbe probate court proceeded to settle and decree distribution among tbe lawful distributees of said estate, as of a solvent estate, it being shown that all tbe debts due by tbe estate bad been paid and satisfied. Among tbe debts shown to [574]*574be paid was tbis claim of Mrs. Walker ; and, on settlement, tbe amount of it was allowed to tbe administrator, Steele, as a lawful credit. At tbe time tbis payment was made by Steele, be was entirely ignorant of tbe fact tbat said judgment bad been previously paid as aforesaid, as were also tbe probate court and tbe distributees at tbe time of tbe settlement. Upon said settlement, tbe said administrator was discharged by tbe decree of tbe court from bis said administration.
But two points are raised by tbe various charges given by tbe court, or those refused; and these relate, 1st, to tbe competency of tbe administrator, Steele, as a witness for the plaintiff below, tbe administrator de bonis non of Mock; and, 2dly, to tbe legal effect of tbe settlement by tbe probate court of Lowndes, of tbe administration of said Mock’s estate as a solvent estate, tbe same having been previously declared an insolvent estate, and tbe claim of Mrs, Walker filed against it as such.
[1.] We think there can be no doubt as to tbe competency of Steele as a witness for tbe plaintiff below, who was administrator de bonis non of Mock’s estate. Tbe Code has introduced upon tbe subject of tbe competency of witnesses tbe rule for our guidance. Tbe witness is declared competent, “unless tbe verdict and judgment would be evidence for him in another suit.” We can imagine no case in which tbe verdict and judgment in the suit below could be evidence for tbe witness Steele “in another suit”; and must, therefore, bold tbat be was a competent witness for tbe administrator de bonis mow.—Code, § 2302; Harris v. Plant & Co., 31 Ala. 639.
{2.] We come nest to consider tbe legal effect of tbe proceedings in tbe probate court, in connection with tbe claim filed by Mrs. Walker. If tbe fact tbat tbe estate of Mock was declared or decreed an insolvent estate, and tbat tbis claim was duly filed against it as such, and was afterwards paid by Steele, tbe administrator, in tbe manner above stated, makes out a case of res adjudicata, then tbe court erred, both in tbe instructions given, and also in its refusal to instruct as requested by defendant; if not, tbe instructions were properly given, and tbe requests properly refused. [575]*575II it was res adjudicata, it cannot be assailed and set aside in any collateral proceeding; if it was not, then tbe payment of tbe claim by Steele, as administrator, mero motu, and without any decree of tbe probate court, would leave it in tbe condition of any other case where money is paid by mistake, which makes the payee a trustee for the payer, and raises an implied promise to pay it back, on which suit may be instituted as upon any other like promise.
And, first, let us ascertain what is the nature of the order or decree of the probate court, declaring an estate insolvent. This court, in the case of Middleton’s Adm’r v. Maull’s Adm’r, (16 Ala. 479,) said, that such an order or decree is only interlocutory. From its very nature it must be, for it settles nothing as to the validity or amount of any claim. All it is intended to effect is to establish with reasonable certainty the ground upon which the court shall proceed in the settlement of an estate. Is the estate solvent or insolvent, becomes an important preliminary question, which must be ascertained before the court can proceed with the actual settlement or final determination of the rights of the parties. This is done with certain formalities; but the whole proceeding is but preliminary to the main matter, which is the settlement of the respective rights of the administrator de bonis non and the several claimants. Where the question of solvency is contested, the statute gives a right of appeal, it is true; but this does not change the character of such a contest, or the decision upon it. The same statute gives the right of appeal from an order or decree of the probate court appointing or removing an executor or administrator, and this was surely never esteemed anything but an interlocutory order. The order or decree declaring an estate insolvent is, then, merely interlocutory in its character, and if res adjudicata, is only so on the simple question of the solvency of the estate.
The estate of Mock, as shown by the record, was declared insolvent on the first day of November, 1849. After this, as the law then stood under the act of 1843, claimants were allowed six months to file their claims; and all claims not so filed were to be forever barred, unless the assets were more than sufficient to pay such claims, when the surplus, [576]*576as it was beld under that act, in Middleton’s Adm’r v. Maull’s Adm’r, (16 Ala. 479,) was to be distributed to such creditors as had filed their claims against the administrator within eighteen months, although they had neglected to file them as claims against the insolvent estate within six months from the declaration of insolvency. Since the Code went into operation, and under the terms employed in the Code, we may remark, a different rule has been observed. As the law and the decisions under it now stand, all claims which are not filed within six months from the declaration or decree of insolvency are forever barred; and if the estate proves solvent, and there is any surplus left, it must be apportioned among the distributees of the estate.—See Puryear v. Puryear, 31 Ala. 555, and cases there cited.
This claim, it appeared, was filed on the 27th of April, 185*0, within the six months. On the 18th of February, 1856, the claim was paid by Steele, the administrator; and in September, 1856, Steele, as administrator, made a final settlement of his administration of said estate, in which he was allowed the payment of this claim as a credit. There was a surplus in his hands after the payment of all the claims against the estate, and this surplus was decreed to the distributees, who were all before the court; and he was finally discharged from his administration. It would thus appear from the record, that no administrator de bonis non was appointed, as the act of 1843 provides may be done; but that, as that act also provides, the administrator, Steele, “was continued in office”, to conduct and settle it as an insolvent estate.
Now, from the foregoing statement of facts, as presented by the record, it is manifest that there never was any judgment, order, or decree of the probate court, upon this claim, either as to its amount, or as to its validity. The administrator, Steele, undertook to pay it without any order or decree of the court. He paid it in April, 1856, and there was no settlement of the estate made with the court until September of that year. He must have undertaken to pay it, and did actually pay it, then, upon his own responsibility. It was his own act as administrator, in the common course of his administration, and without any shelter or protection [577]*577sucb as an order or decree of the court would give; and would be so beld under any proceeding against him in which it might be called in question. The subsequent settlement of the estate with the probate court, when it was shown that all the debts were paid, and this among them, and when the surplus remaining in his hands was decreed to the distributees, who were the only parties before the court, cannot alter or affect its character. The allowance of this claim as a voucher, in the account of the administrator upon that settlement, showing how he had administered the assets, is not a decision, or judicial act of the court, which affects the party whose claim had been paid. Her claim had been paid in full by the administrator, and she had no further interest to look after or prosecute. The claim was paid, and he held a receipt for the payment, as a voucher to show how he had administered the assets. No contest could ever arise in the probate court, as to the amount or- validity of the claim filed, after “nine months” from the time when the estate was declared insolvent; and more than nine months having elapsed, both the administrator and the claimant were compelled to regard any right to contest the claim in that court as closed and precluded. If wrongfully paid, the distributees, I admit, upon the settlement with them respecting the surplus, might contest with the administrator the allowance of such a voucher; but that would be a contest between the administrator and the distributees, and would be res adjudicata as between them. But say that the distributees had contested this voucher and allowance, and had done so successfully, and had made the administrator account again for the money wrongfully paid to Mrs. Walker, through mistake; can there be any law or justice in saying, that because they had succeeded, in this contest with the administrator, in showing that the money had been wrongfully paid, that Mrs. Walker should have the right to plead that as a judgment in her favor, when sued for the money she had improperly received ? It amounts to this : one party has the right to plead and to show that money has been wrongfully paid by his contestant to a third party, and the party who received the money wrongfully has the right to plead that judgment in [578]*578bar of a suit to recover back tbe money. The rule of res adjudícala does not surely intend to put an end to legislation on terms so unjust and unreasonable. As the case is presented, the payment by Steele was like any other payment made by an administrator at his own election, and without contestation, or order of court; and being such, if he paid a claim the second time, through mistake, which had been previously paid, he can rightfully sue in assumpsit to recover it back; or an administrator de bonis who succeeds him can do the same thing, if the payment by the administrator in chief has been allowed to him as a credit in the settlement of his administration.
But, if there be no force in the general reasoning already employed, this question of res adjudicóla is set to rest, I think, by the very terms of the statute of 1843, under which this estate was declared insolvent, and the claim filed. That statute, in the 11th section, after providing when and how the executor or administrator of an insolvent estate shall make settlement, uses these words: “And at such settle-tlement, the court shall adjudge and decree to each creditor, whose claim shall have been allowed, as herein provided, his ratable proportion,” &o. — Acts 1842-3, p. 37. It is not pretended that any such judgment or decree of her ratable proportion was rendered in favor of Mrs. Walker in this instance. The record shows, in fact, that no such judgment or decree was rendered in favor of any one of the creditors; and without it, we are of opinion, that no claim paid by the administrator, either as to its amount, validity, or in any other respect, ever received the impress of res adjudicata, so far as the said creditors are concerned.
There is no error in the rulings of the court, and the judgment below is affirmed.