Mr. Chief Justice Smith
delivered the opinion of the court.
This suit was brought in the superior court of chancery, for the purpose of charging the estate of Henry Ridley, in the hands of his administrator, with the payment of certain claims held by the complainant as the surviving partner of the firm of Yeatman, Woods & Co.
The bill alleged that Henry Ridley died in 183-, in Madison county, Mississippi, possessed of a large estate, consisting of land, slaves, andstoclr, which, with the increase, was still in said county; that Henry Ridley was indebted to Yeatman, Woods & Co. in a large sum of money, for which he had executed his notes; that Moses Ridley, administrator on his estate, and finding it greatly involved in debt, and believing that it would be ruined if these claims were pressed against it, proposed to renew the debt due to Yeatman, Woods & Co., and to give security, provided time should be given. This proposition was accepted, whereupon Moses Ridley, as the administrator, jointly with Elizabeth, William A., Samuel J., and Henry Ridley, who signed as sureties, executed five notes each for the sum of $8,560. These notes bore date at New Orleans, on. the 1st of April, 1845, and were payable one, two, three, four, and five years, with interest from date, at eight per cent, per annum. The claims of Yeatman, Wood & Co. were proved according to law, and were known and acknowledged to be just by the administrator. The sole consideration of the notes was the debt due by Henry Ridley; aud it was expressly understood that the execution of the same was not to operate as a release to the estate. But, on the contrary, it was to remain bound. The note's were made payable to Moses Ridley, and expressed upon their face, that they were given on account of the estate; and when this arrangement was consummated, the original notes of Henry Ridley were delivered to Moses Ridley.
The bill alleged further, that at the January term, 1849, of the court of probates of Madison county, the defendant, Samuel J. Ridley, was appointed administrator of the estate of Henry Ridley, in the place of the said Moses Ridley, and as such, liad continued to act up to the time of filing the bill; that he had refused to pay the said notes; that complainant had in[141]*141stituted suits thereon against the makers, whom he believed to be unable to pay them; and that in consequence of the execution of the said notes, complainant was without a legal remedy to enforce payment from the said estate in the hands of the administrator.
A general demurrer was filed by Samuel J. Ridley, which was overruled. An answer was then filed by this defendant, and a pro confesso taken as to the others.
In the answer it was stated that Henry Ridley died in the State of Tennessee, in 1835, owning a large estate in Madison county, Mississippi, which, with the increase, was still in that county; that the decedent was not indebted, at the time of his death, to the firm of Yeatman, Woods & Co., and that he never executed any notes to them as charged in the bill; that Moses Ridley assumed to act as administrator on the said decedent’s estate, but that he acted without authority, never having given bond as such, as is required by the statute; that neither the complainant, nor the said firm of Yeatman, Woods & Co., had any just or legal claim against the said estate, and that none such was ever proved against it in this State; that defendant had no knowledge whether said claims were in fact ever admitted to be just charges against the estate, by the said Moses Ridley; but that if any such admissions were ever made, they were made without authority to bind the estate of the decedent in Mississippi; and that no such claims were ever known to, or admitted by, the defendants to be just. It was true as alleged, that the notes were executed by the defendants; and expressed upon their face that they were given for and on account of the estate; but that the notes were given upon the representations and at the solicitation of the said Moses Ridley, who possessed the entire confidence of the defendant, Mrs. Elizabeth Ridley, who was the widow of the deceased, and had unbounded influence with the other defendants who were once his wards, and had then but recently arrived at the age of majority. The defendants signed the said notes upon the representation of the said Ridley, that it would be for the benefit of the estate for them to do so; and that they complied with his request, relying upon his representations, not having any knowledge or informa[142]*142tion of the particulars of the matter, or the manner in which the estate was thereby to be benefited; and that the execution of the notes was procured fraudulently, by the undue influence which the said Ridley exercised over the defendants.
It was further denied, that it was understood or agreed by the defendants, when the notes were executed, that the estate was not thereby to be released; but, on the contrary, was to remain bound for the original debt. It was insisted, if any such agreement was made by the complainant and Moses Ridley, it was void as to the decedent’s estate in Mississippi. It was admitted that the defendant, Samuel J. Ridley, was appointed administrator of Henry Ridley’s estate by the probate court of Madison in 1849; that he had continued to act as such up to the time of filing the bill; that the defendants were unable to pay the debt demanded by the complainant, independent of their interest in the said estate; that suits were, as alleged, instituted on the notes, and that complainant had no remedy at law; but denied that he had any right in equity to enforce payment. of the debt from the estate of the decedent in the hands of the defendant.
The bill, upon this hearing, was dismissed, and an appeal was taken to this court.
It was in proof that Henry Ridley, who died in 1835, at his residence in the State of Tennessee, was possessed of a large estate, situated partly in said State, and partly in the county of Madison, Mississippi. The property in Madison county consisted of a plantation, stock, and a large number of slaves. The said decedent, previous to his death, made a nuncupative will, which, in August, 1835, was admitted to probate in the county 'court of Rutherford county, Tennessee, and letters of administration with the said will annexed, were, in the November following, granted to Moses Ridley. An authenticated copy of the will was presented and admitted to probate in the court of probates of Madison county in December, 1835, and an order was made, granting letters of administration to the said Ridley upon his entering into bond in the amount and with the sureties named and designated in the order. There was no formal or valid execution of the bond directed by the order, but [143]*143a paper, or blank bond, was signed by Ridley and the sureties, and filed in the office of the clerk of said court. Appraisers of the estate were, at the same term, appointed, and Ridley took possession and proceeded to act as the administrator.
Henry Ridley died, leaving eight children, who were his heirs and the distributees of the estate, seven of whom were surviving when the bill was filed. Mrs. Elizabeth Ridley, the widow of the deceased, and three of the heirs, are the defendants to the bill.
The estate in Madison county was purchased on a credit by Henry Ridley, and at the time of his death, he owed nearly the whole amount of the purchase-money. N. & J. Dick & Co. were his factors in New Orleans, with whom he had transacted his business for some time previous to his death, and who then held a claim against him arising upon their acceptance of two drafts, which in the aggregate amounted to about $12,000. Moses Ridley, affecting to act as the administrator, continued to transact the business of the estate with N. & J. Dick & Co. He shipped the crops produced on the plantation in Madison county to them, and drew bills to a large amount. The proceeds of the crops were applied to the payment of the debt due by Henry Ridley, and of the bills drawn by Moses Ridley. The business was conducted in this manner down to the 30th of April, 1840; at which date, as it appears from the exhibits attached to the deposition of H. R. W. Hill, a member of the firm, that the net proceeds of the cotton shipped by Moses Ridley, and sold on account of the estate, amounted to near the sum of $35,000. At the same date the balance claimed by N. & J. Dick & Co., against Ridley, as the administrator, based on acceptances and money advanced to him, amounted to $30,560.
It appears from the testimony of- Moses Ridley, which was objected to on the ground of his interest in the result of the suit, that when he took possession of the estate as the administrator in 1835, he found it greatly embarrassed with debts, which, in the aggregate, exceeded the sum of $65,000, and which, if pressed by the creditors, would cause the entire ruin of the estate. He was very desirous of managing the estate so as to [144]*144free it from debt, and to save something, if practicable, for'the heirs of Henry Ridley; and, believing that it could be worked out of debt, if indulgence could be obtained, he endeavored to concentrate the debts, and for that purpose, and in pursuance of an understanding with N. & J. Dick & Co., he drew bills upon them, with the proceeds of which he paid off other creditors of the estate. In pux-suing this course, he carried out an understanding which existed between that firm and the decedent at the time of his death; he used his own credit, and consequently put at hazard his own estate, and in the whole of the transactions, he acted from a sincere desire of benefiting the estate in his charge.
When the accounts of Moses Ridley were closed with N. & J. Dick & Co. at the time above stated, that firm was indebted to Yeatman, Woods & Co.; and Ridley, pursuant to an understanding between the parties, gave them notes of $10,189.56 each, which Yeatman, Woods & Co. accepted in payment of so much of their debt. They gave credit to N. & J. Dick & Co. for the amount of the notes, and Ridley, as administrator, was credited with the said balance of $30,568. Ridley continued to ship the crops to N. & J. Dick & Co. until 1849, when the defendant, Samuel J. Ridley, was appointed the administrator. The record contains no satisfactory evidence in regard to the amount or value of the crops raised on the plantation from 1840 to 1849; but if we take the value of the crops reared before 1841, as the criterion by which to determine the value during the whole time Moses Ridley had charge of the estate, we must conclude that it exceeded the sura of $80,000.
A general payment was made by Ridley, in 1842, to Yeatman, Woods & Co.; and in 1845, five notes amounting in the aggregate to $42,800 each, were given by Moses Ridley as administrator, jointly with the defendants, for the balance of principal and interest then due upon Ridley’s original notes to that firm. The notes made by Ridley and the defendants were payable in one, two, three, four, and five years, and bore interest from date, at the rate of 8 per cent, per annum. Ridley rendered no account of his acts as administrator, either in the proper court in the State of Tennessee, or to the court of pro[145]*145bates of Madison county. He made no showing whatever of the moneys which came into his hands, arising either from the sale of the crops or from any other source. The estate of Henry Ridley remains unsettled and has not been distributed, but is still in the possession of the defendant, Samuel J. Ridley, as the administrator.
Several important questions arise upon the foregoing facts. The first of these is the question whether or not Moses Ridley, by virtue of the grant of letters of administration cum testamento annezo, had authority, by the execution of the notes for the purposes and in the manner described, to charge the estate of the decedent.
The affirmative of this proposition is maintained by the appellant. It is insisted on his behalf, that this authority was expressly conferred by the will, and if not, that the power to charge the estate by these contracts, existed as a part of the general authority of Ridley as the administrator.
Henry Ridley, as we have seen, made a nuncupative will which was admitted to probate, both in Tennessee and Mississippi. To ascertain its provisions, and the nature and extent of the powers conferred upon Moses Ridley, who took out letters-of administration with that will annexed, it is necessary to-revert to the circumstances attendant upon its execution.
The deceased was attacked with cholera on the 22d of July, 1835. At first, it was thought, he was not dangerously ill; but' in a short time he ■ grew worse. Moses Ridley, who was a> brother of the deceased, was sent for; and when he arrived, the disease had made rapid progress, and was assuming its malignant form. When Moses Ridley entered and approached the-bedside, the deceased turned towards him, and as he clasped his hand, exclaimed, “ Oh, my brother, my brother, I wish I could' have a few moments’ ease, that I could talk with you; I want you to promise to settle my business.” On being asked if it was the whole or a part of his business, he replied, “ The whole ;■ I wish you to do the best you can for me; I wish James Morton to be made safe.” He was asked by Moses Ridley how he was to ascertain the situation of his business? He said, “ You-must hunt it out yourself; you can ask James Morton, he [146]*146knows more about it than anybody else. Soon afterwards he exclaimed, “ If I had time, I would make a will.” Moses Ridley then remarked, If he would mention his will before the gentlemen, it would answer as well as if written; that Mr. Rabb was present, who understood the nature of such matters. The deceased spoke quickly, and said, “ I wish Betsey (his wife) to have this place,” when he was stopped by a spasm. After the lapse of a few moments, he was asked what else he "wished his wife to have? but before he could answer, a recurrence of the spasms, and their continuance in quick succession prevented any further conversation on that or any other subject.
íhe statute of the State of Tennessee, in regard to nuncupative wills, embraces substantially the provisions of the statute of 29 Charles 2, in reference to the same subject. It declares that no nuncupative will “ shall be good where the estate exceeds two hundred and fifty dollars, unless proved by two witnesses present at the making thereof; and unless they or some of them were specially required to bear witness thereto by the testator himself; and unless it was made in his last sickness in his own habitation or dwelling-house, or where he had previously resided ten days at least, except he be surprised with sickness on a journey or from home, and dies without returning to his dwelling.”
Nuncupative wills have never been regarded with favor by the courts; they are, however, if duly proved, equally entitled to be established with written wills. But much greater strictness is required, in several respects, in the proof of wills of this character, than in the proof of written wills. If the proof fail in establishing a strict compliance with any one of the provisions of the statute, according to the unvarying current of decisions in England and this country, it will be fatal to a case of this description; for example, the rogaiio testium which is, as we have seen, required by the statute of Tennessee; and which is, in truth,'the evidence of the^animus testandi, must be clearly and strictly proved, or it will not be a valid nuncupative will. Winn v. Bob, 3 Leigh, 140; Prince v. Houghton, 20 J. R. 502; Talby v. Butterworth, 10 Yerger’s R. 501; 3 Humph. 342.
The will in question was admitted to probate in a sister [147]*147State, as well as Mississippi; and it is not our purpose, if it were competent for us to do so, to declare the probate of it void. Our object is to ascertain what was the will which was in fact proved and admitted to probate. In proceeding to do this, we would remark that no words used by the deceased, which were not of a testamentary character, can, upon any principle, be regarded as a part of the will, although spoken at the time when it was made. The following words, therefore, “ I want you to promise to settle my business; ” “ The whole; ” “I wish James Morton to be made safe; ” “ Youmiuekhunt it out yourself; you must ask James Morton; he^joT^dmUré^bout it than anybody else,” are not to be helcfe|a^OTnstitiitffl^y^ertions of the will. Upon no principle can Áeae..declarations jbe considered an act of a testamentary natmffifJ€‘vun updÍMllUadmission that they were made animo ,pK)st, ^Jpy could only amount to an appointment of MsexecmOT. f“Williams’ Exec’rs, 134. But it is very clear be held to have such an operation, as the deceased did not, when he made these declarations, think he was making his will. He had previously expressed no such wish or intention. He seemed only desirous of conversing with his brother concerning the condition of his affairs. It was not until after he had used the words above last quoted, that he exclaimed, “ If I had time, I would make a will.” This was the first intimation of such a desire. It is manifest, therefore, that whatever the deceased had previously said, constitutes no part of the will. Upon making the exclamation above quoted, the deceased was informed that if he would mention his will to the gentlemen present, it would answer as well as if it was written. The deceased then said quickly, and without having declared his intention to make a will, or having called upon any one present to bear witness thereto, “ I wish Betsey to have this place.” It is not our purpose to criticize the action of the county court in admitting the will to probate, but to ascertain simply what that will was. It appears to us upon the most indulgent view which can be taken of the subject, that no portion of the statements or declarations of the deceased can be. regarded as his will, except the single declaration by which he expressed a [148]*148wish that Mrs. Ridley, his wife, should have the place he then lived on.
If we are correct in this conclusion, it is not to be questioned, that the administrator with the will annexed, possessed no power or discretion in regard to the settlement of the estate, which would not attach upon the appointment of an ordinary administrator. There is, therefore, no foundation for the position that Moses Ridley, by virtue of the powers conferred in the will, had authority to bind the estate by the execution of the notes as alleged in the bill.
The next question to be examined is, whether Moses Ridley, by virtue of his general powers as an administrator, could bind the estate at law by the execution of the notes in question.
It is unquestionably true, as a general rule, that an administrator can make no contract or create any new debt, by which the estate of his intestate would be chargeable at law. In Sims v. Stillwell, 3 How. 181, it was said by this court “ that an exee.utor is individually responsible, although he expressly promise to pay, ‘ as executor,’ where the nature of the engagement .necessarily creates an individual liability, where, for example, lie makes a promissory note or other written contract, where it •does not clearly appear that it was given or made for a debt or liability of the testator, or if it be made to pay at a future day with interest, which necessarily makes it the debt of the •executor individually.”
In the case of Steele et al. v. McDowell et al. 9 S. & M. 193, the doctrine is laid down, “ that an action against an executor, upon a promise made by him as such, when the debt is created after the testator’s death, can only be maintained when it affirmatively appears that there was a clear and just liability on the part of the estate.” This case seems to recognize the right of the creditor, at his election, where the promise of the executor is based upon the liability of the testator, to procure against the executor as the representative of the deceased, or to charge him personally for the debt. This is certainly a departure from the rule laid down in Powell v. Graham, 7 Taunt. 581; Ashby v. Ashby, 7 Barn. & Cress. 444; Childs v. Mornins & Bowles, 6 Eng. Com. L. R. 200; which was fully recognized [149]*149in Sims v. Stillwell, and which has been recognized by courts in this country of the highest respectability.
When an executor or administrator pays a debt or discharges a contract which constituted a just charge against the estate of his testator or intestate, out of his private funds, he will be entitled to an allowance for the same in his administration account. But it has never been holden by this court that an action could be maintained against an administrator, in his. representative character, upon a promise to pay money borrowed by such administrator, on the ground that it was so obtained for the benefit of the estate. An administrator certainly, as a general rule, has no right as such to stipulate for the payment of interest. He takes the place of the intestate as to all of his existing contracts. It is his duty to discharge them in the manner pointed out by the law. He can waive no defence to which he is entitled by the law, and hence he is incapable of enlarging any contract entered into by the intestate.
Tested'by these principles it is manifest that the notes given toYeatman, Woods & Co., by Moses Ridley and the defendants as joint makers, did not bind the estate, of the deceased. They were given for a debt created by bills drawn on the house of N. & J. Dick & Co., not by the deceased, but by the administrator himself. They were in fact giveyi for money advanced to him. They were made payable at a future day, and in renewal of notes previously executed by him, which stipulated for the payment of a rate of interest which, as the administrator either in Tennessee or Mississippi, he could not legally contract for. Leaving out of view for the present any equitable right which the complainant may have to stand in the place of Moses Ridley, and in that view to charge the estate for the amount of money actually applied in the payment of the just debts of the deceased, unquestionably the execution of the notes themselves imposed only a personal obligation on the makers, and could no-t affect the estate.
But if it were conceded, as contended for, that these notes created a valid charge against the estate; the concession would be fatal to the complainant. For upon that hypothesis he would have a clear right to enforce the payment of them out of [150]*150the estate, by an action at law against the present administrator. .Upon that assumption, the casein no respect would be different from that of one in which a creditor holds a legal demand against the estate of a decedent, clearly and certainly recoverable by an action at law against the representative. It will surely not be contended, that in such a case a court of equity could entertain jurisdiction.
The complainant not having a right by an action at law to charge the estate, the question next to be considered is whether he can, by a proceeding in equity, subject it to the payment of the amount due'upon the notes.
If the complainant has any right, in equity, to recover, such right is based upon the ground that the notes in question were given either in payment of the just and legal debts of the deceased, or of money advanced to Moses Nidley, acting in the character of the administrator, and which was in fact employed by him in the payment and discharge of the debts of the deceased. Upon no other hypothesis could any equitable claim attach in favor of complainant, as against the estate.
Notwithstanding it is incompetent for the administrator, by his contracts or promises, such as we have been considering, to impose any debt upon the estate of the intestate, it is not to be controverted that if he with his own money pay the debts, he will be entitled to charge the estate in his administration account with the amount of the debts so paid, to save the effects sold for the payment of his claim. Pie would also have the right by bill in equity to enforce the payment of his demand against the heirs and distributees, in case the estate had passed into their hands.
It appears to be settled also, that where an executor or administrator has given his own note in payment of a debt of the testator or intestate, the estate would not thereby be released, •unless such was the agreement of the parties; and this although the executor may have settled and given himself credit in his account for the debt. In such a case the creditor might, at his election, hold the executor personally liable, or proceed by bill against the estate. Brouly v. Peters, 10 Peters, 140; Douglas v. Fraser, 1 Rich. Eq. N. 105.
[151]*151Persons dealing with the representatives of a deceased person, are presumed in law to be fully apprized of the extent of their authority to act in behalf of the estate which they represent. Hence, in the case of an ordinary administrator, they are presumed to know that he has no authority, as such, to make new contracts which will bind the estate in his charge; such, for example, as contracts for the loan of money even upon the pretence that it is needed to pay the debts. A person, therefore, who, under such circumstances, advances money to an administrator, acquires no right either at law or in equity as against the estate. His equity only arises in case the money advanced has in fact been applied to the payment of debts for which the estate was justly and legally bound. In such cases the creditor of the administrator will be permitted to take his place, and will be subrogated to his rights. But reason, as well as sound policy, requires that it. should be shown by the clearest evidence that the estate has been benefited, or, in other words, that the money has been applied beneficially and in the payment of the debts.
Let us apply these principles to the case at bar. We think it will appear evident, that the complainant is not entitled to relief in this court.
Moses Ridley qualified as the administrator of the deceased’s estate in 1835, in the State of Tennessee. He obtained an order from the court of probate of Madison county, in December of the saiue year, granting letters of administration, upon his entering into bond with security as required by the statute. He failed to execute any bond which would either bind himself or his securities, and it does not appear, by any competent evidence, that letters were ever issued to him in this State. He took charge of the effects of the deceased, both in Tennessee and Mississippi, and failed in every respect to discharge the duties which devolved upon him as the administrator. He returned no inventory, nor did he render an account to the proper court in Tennessee, or to the court of probates in Madison county, of a single act connected with the administration for fourteen years, during all of which time he continued to receive and [152]*152appropriate the crops produced on a large cotton plantation. The evidence in reference to the entire value of the crops, is very imperfect and unsatisfactory.' They were sent to N. & J. Dick & Co. at New Orleans, and sold on account of the administrator. Their aggregate net value, up to the 30th of April, 1840, amounted to somewhere about §35,000. Hence in the absence of definite and satisfactory evidence as to their value, from 1840 to 1849, it may be presumed that their entire value, from 1834 to 1849, greatly exceeded the debts of the estate, which, according to the administrator’s own testimony, amounted to about §65,000. When this bill was filed, the amount of principal and interest, alleged to be due upon the notes, exceeded the sum of §51,000. In effect, therefore, the debts were reduced but §14,000. Deducting the interest yearly accruing upon §65,000, the amount of the debts of the deceased, and the net annual value of the crops would fall short of one thousand dollars. If this view of the transaction is not explained by reliable and satisfactory evidence, the conclusion cannot be avoided, that there was, at the least, exceedingly injudicious management on the part of the administrator. If we turn to the evidence in the record, the prospect will not be greatly improved.
Moses Ridley was the principal witness for the complainant. We have stated that his testimony was objected to on the ground of interest. The objection does not appear to have been made in the court below, but was made in this court for the first time. It is now too late to object to it on the ground of incompetency. But if this witness had such an interest as should have excluded him, if objected to in time, the objection will go to his credibility.
We have no doubt that Ridley was an incompetent witness. He was personally liable upon the notes, and suit had been brought to charge him accordingly. He would have been relieved from that liability, if the complainant had succeeded in subjecting the estate in payment of his claim. He had, therefore, an evident interest in the success of the party for whom he was called as a witness. For although he might not thereby be discharged of his obligation to account with the estate, [153]*153nevertheless he would be released from a present and certain responsibility, and his ultimate liability would, thereby, be made to depend upon the uncertain issue of the litigation thereafter to be waged with the distributees.
Further, when we look at the ground on which alone the complainant could be entitled to recover, the incompetency of this witness will appear still more evide'ht. If funds were advanced by the complainant to the administrator, and by the latter applied in payment of the debts, or to some useful and beneficial purpose of the estate, whereby, upon the settlement of his accounts, the estate would be found to be justly indebted to him, the complainant, under a given state of facts, would, in equity, be entitled to take the place of the administrator. Upon no showing short of this would the complainant have any title to relief. It is hence manifest, that the witness had a direct interest in the result of the suit. If he proved the equity of the complainant’s demand, he could do so only by establishing the justice of his own claim to repayment from the estate. Independent of the interest which the witness manifestly had in the result of the controversy, there were other circumstances connected with his relations to this litigation, and inferences arising from his own evidence, which compel us to look with some suspicion upon his testimony, and to receive it with many grains of allowance.
Moses Ridley, as we have seen, has never settled with the estate of the deceased. But waiving the objection that the court of probates, in regard to the settlement of the accounts of executors and administrators, has exclusive jurisdiction, and hence that it is not within the competency of the court of chancery to order an account to be stated between an executor and the estate of the testator, let us endeavor to ascertain whether' we would be justified in holding that Ridley has any claim whatever upon the estate.
According to Ridley’s own statement, the estate owed, at the time he was appointed the administrator, $65,000. This statement is not borne out by the vouchers filed with his deposition, assuming that the vouchers themselves would be sufficient evi[154]*154dence on which to base the action of this court. But when we examine them we find that they are receipts for the payment of claims, at least much the greater portion of them, which were not authenticated in conformity with the directions of the statute. Hence, that he was not authorized to pay them. Even the claim of N. & J. Dick & Co., which appears to have formed the nucleus around which was collected the various claims alleged to be the debts of the deceased, was neither proved nor allowed in the manner pointed out in the law. Another claim of $10,000, which was a note payable to Warren, and made by Thos. S. Anthony, was neither proved nor allowed, and the record contains not the slightest evidence that this note was ever claimed to be a debt of the deceased. The debt of Lee, Maddox, & Co., of upwards of $14,000, which arose out of their acceptance of the joint drafts of Jas. Morton and the deceased, was taken up by the firm of N. and J. Dick & -Co., and charged to Ridley without ever having been allowed by the judge of probates. It is not pretended that these may not have been just debts of the deceased, or that Ridley did not act in good faith in discharging them; but he was not justified in paying them, and when he did so, he acted at his own peril. . In the present attitude of this case, the evidence, in our opinion, was not sufficient to establish them as just demands against the deceased’s estate.
But if it were conceded that the debts amounted to the sum of $65,000, and that they were paid off or taken up by the administrator, by the substitution of his own obligations, it would not follow that Ridley was the creditor, even to the amount of his substituted obligation. This could only be shown by a comparison of the debts which were paid off, or assumed by him, and the amount of the funds of the estate which came into his hands. Having failed to render any account of these, and the complainant having failed to adduce any reliable and satisfactory evidence in regard to that subject, it is impossible for this court to say, that the estate was indebted in any amount whatever to Ridley.
There are several other questions of interest, but of minor [155]*155importance, presented by the record. As a determination of them any way would not produce a change in the result of our examination, we deem it unnecessary to notice them.
Let the decree be affirmed.
Handy, J., having been of counsel, took no part in this decision.