
    SMITH & LOVELESS, Adm’rs. vs. HALL.
    1. When a devisee’s undivided interest in real estate is sold under execution at law against him, and the land is afterwards sold under an oi’der of the Court of Probate, for the purpose of distribution, the purchaser at the sheriff’s sale of the devisee’s undivided interest, cannot petition the Court of Probate for a distribution of the proceeds of sale, under the statute which allows devisees, legatees and distributees to have a distribution of the estate after the lapse of eighteen months, (Clay’s Digest, 196, §§ 23, 24,) (Dargan, C. J. and Ligón,
    J., dissenting.)
    
    Error to the Circuit Court of Tallapoosa.
    Tried before tbe Hon. J. J. Woodward.
    Tbe defendant in error filed bis petition in tbe Orphans’ Court of Tallapoosa County, setting forth, that John Loveless died in said county, after first having made and published bis last will and testament, by wbicb be devised certain lands to bis wife for life, and to bis children in fee at her death, to be equally divided among them; that there were ten children entitled to take under tbe will, among whom are John and Daniel Loveless, (tbe names of tbe others are also set forth in tbe petition;) that Joseph C. Rawles, then sheriff of Tallapoosa county, after the death of the widow, became administrator with the will annexed of the elder John Loveless, and as such filed his petition in the Orphan’s Court, setting forth that the lands devised could not be fairly, equally, and beneficially divided among the parties in interest, without making sale of them; that an order was accordingly granted, and a sale made in pursuance thereof. At this sale the lands brought $300.
    The petition further alleged, that before Rawles, the administrator with the will annexed of John Loveless, filed his petition for the sale of the lands, and after the death of the widow of the testator, one John 0. Holeman had obtained a judgment in the Circuit Court of Tallapoosa county, (in which the lands are situated,) against John and Daniel Loveless, two of the devisees under the will, upon which an execution issued to the coroner of Tallapoosa, which was levied upon the undivided interest which the defendants in that judgment had in the lands devised, which was sold, and the defendant in error became the purchaser; that the coroner made him a deed for the undivided interest of said John and Daniel, which was duly recorded. The petition further-sets out, that after the purchase of the petitioner, and before the sale by the administrator with the will annexed, said administrator had received $111 for rent of the premises; that upon the expiration of his term office as sheriff, Rawles relinquished his administration, and paid over to the plaintiffs in error, who became administrators de bonis non with the will annexed, the purchase money and rents aforesaid, and that they yet have them in their hands; that the estate was not finally settled when the petition was filed, but more than eighteen months had elapsed since the grant of letters of administration.
    He prays that the administrators de bonis non be compelled, by decree of the Court, to pay to him the portions to which John and Daniel Loveless would have been entitled under the will of John Loveless.
    On this petition citations issued to the plaintiffs in error, who appeared, and filed reasons why the prayer of the petition should not be granted. They are numerous and prolix, but may be resolved into two, to-wit: 1st. That the petitioner bad no sucb interest in tbe estate of tbe testator as would entitle bim be beard in tbe Orphans’ Court; and, 2d, That be took no title to tbe premises devised bj bis purchase at tbe coroner’s sale.
    Tbe principal facts stated in tbe petition were admitted in tbe Orphans’Court, and, without any bill of exceptions, were spread on tbe record at the request of the petitioner. Tbe Orphans’ Court dismissed tbe petition.
    Tbe.case was taken to tbe Circuit Court by certiorari, where tbe judgment of tbe Orphans’ Court was reversed, and on tbe record sent up, the Circuit Court rendered judgment in favor of tbe petitioner, without requiring, tbe execution of a refunding bond.
    Erom this judgment of tbe Circuit Court, a writ of error was sued out by tbe administrators with tbe will annexed, and tbe case brought here for revision.
    Tbe judgment of tbe Circuit Court is here assigned for error.
    SeabobN Williams and J. EalkNer, for plaintiffs in error:
    1. Daniel and John Loveless bad no sucb interest in tbe land as was tbe subject of levy and sale under execution at law, and, therefore, Isaac P. Hall acquired no right by bis purchase from tbe coroner of Tallapoosa.
    
      2. Tbe estate of Jno. Loveless was yet in tbe course of administration; tbe land was subject to be sold by tbe administrator to pay tbe debts of John Loveless; tbe administrator did sell, as is shown by tbe record.
    3. If Hall acquired any title, it was legal; it will not be pretended.be could have acquired any other. If legal, Hall bad a right to enter into possession; if be bad that right, ejectment was bis remedy; if bis title was not sufficient to support that action, it is good for no purpose whatever.
    4. While tbe land was in tbe bands of tbe administrators it was trust estate, tbe administrator having a paramount right till tbe close of tbe estate, or it was found that it was not needed to pay debts.
    5. Tbe Orphans’ Court is one of limited powers; has no other than is given by statute. Tbe power here sought to be exercised was never conferred, or intended to be conferred, on tbe Orphans’ Court,
    
      6. It will not be pretended tbat tbe power of tbe Orphans’ Court is concurrent witb tbe Court of Chancery in such cases. It is denied tbat either court could have given tbe remedy sought. If, however, tbe judgment creditor, whose judgment Hall claims through or under, had seen fit, at a proper time, and under proper circumstances, to have gone into equity, he could have done so, and subjected the interests of Daniel and John T. Loveless.
    7. The Orphans’ Court has no power to substitute a stranger for an heir, or a distributee of an estate by process of law, without the consent of the heir, and allow such stranger such rights as to allow him to come forward and petition for distribution in,a part or whole of the estate. Such a proceeding has never before been entertained, and is without the slightest foundation in law.
    8. Nothing but the legal title to real estate can be sold under execution. Olay’s Dig. p. 350, § 31. The legal title to an estate is in the personal representative until distribution, and consequently, is not subject to levy and sale under an execution against the heir. 10 A. E, 630. So far as the heir is concerned, the intestate’s equitable or legal title to land is the same, and passes in the same way. 2 A. E. 712. As to the title of the personal representative to the real estate, see 10 A. E. 60, and 10 A. E. 393, and cases cited on plaintiff’s brief in that case. By the construction of the Orphans’ Court, it has no power to try questions of title to real estate; and to allow such a proceeding as this in the Orphans’ or Probate Court, would involve that court, as well as heirs and distributees of estates, in endless difficulties.
    HefliN, and Babnes & AllisoN, contra:
    
    1. The title to real estate descends to the heir upon the death of the intestate ancestor, and not to the personal representative, and the administrator has nothing to do with it, and has no right to meddle with the same, unless for a division among the heirs under the statute or to pay debts. 2 A. E. 663; ib. 717; 12 A. E. 533; 15 A. E. 228 and 12 A. E. 391.'
    2. And the heir has such an interest in the land so descended, from his ancestor, as may be taken for his debts under an an execution against bim before distribution, or any action in the Probate Court; and tbe purchaser at the execution sale takes the title of the heir, subject to all the legal demands for the debts of the ancestor, while the title remained in the hands of the heir, that could have been enforced upon the land before the execution sale; in other words, the purchaser takes by his purchase, only such title as the heir had, and is substituted for the heir; and the land is liable to such proceeding, after the sale, as it would have been if no sale under the execution had taken place; the purchaser standing in the same condition as to distribution and sale to pay debts under the statute, as the heir did before the sale, he being by his purchase only an assignee of the heir; and the title of the purchaser and the other heirs may be divested, on the proper application of the administrator in the cases allowed by the statute, to pay debts or for distribution among the heirs; but in that case the purchaser is substituted for the heir whose interest has been sold, as in this case, and is thrown before the Orphans’ Court to assert his interest for the proportional part of the amount of the sale made by the administrator, and he is entitled to the amount the heir would have got upon distribution. Mattock v. Sterne, 9 Ver. R 826; Proctor 'v. Newhall, 17 Mass. R 81; Griswold v. Penniman, et al., 2 Conn. R 564; 16 Ohio 271; 12 A. R 891; 17 A. R 20.
    8. Orphans’ Court has, in the administration and settling up estates, equity jurisdiction, and an assignee may assert his interest in his own name, and it can make no difference that the assignee claims as a purchaser at an execution sale. When any one petitions the Probate Court for distribution, it is the duty of the administrator to bring those interested in the distribution before the court. Graham et al. v. Aber-crombie et al., 8 A. R 552. When the facts are all proven in the court below, the reversing court will render proper judgment upon the reversal, and not remand.
   GOLDTHWAITE, J.

The act of 1812, (Clay’s Dig. 196, § 23), gives the right, to any one entitled to the distribution of an intestate’s estate, to proceed against the administrator, to compel distribution, at any time after eighteen months from the grant of letters. Another section of the same act confers tbe same right upon, legatees, (Clay’s Dig. 197, § 24); and it is insisted, on tbe part of tbe defendant in error, that as be, by bis purchase under tbe execution against two of tbe devisees, was invested with their interest in tbe lands of tbe testator, be was also substituted in their place as to their remedies to enforce distribution. Tbe statute does not directly confer upon tbe purchaser, authority to proceed to obtain distribution in bis own name; and tbe necessary result of tbe doctrine contended for, is, that if tbe interest of tbe devisee in tbe lands were sold to different purchasers, that in tbe event of a subsequent sale by tbe Probate Court, to pay debts or effect distribution, each purchaser would be entitled to proceed against tbe personal representative, and tbe consequence would be, that a court of limited powers would often be embarrassed, in tbe determination of adverse claims, involving tbe title of lands, and collateral to tbe main issues of administration, while tbe estate itself might be wasted in tbe costs of tbe proceedings. Another great inconvenience, if not a positive injury, would arise in relation to tbe refunding bonds, required by'the same statute to be executed by tbe parties, in case tbe distribution is not made on a final settlement of tbe estate. Clay’s Dig. 196, §§ 23-24. If tbe lands of tbe decedent were sold, under execution against tbe heirs or devi-sees, to fifty different purchasers, each must execute a refunding bond, to meet any debts which might thereafter come against tbe estate, and tbe personal representative forced to a separate suit on each of tbe bonds; while, on tbe other band, by proceeding in tbe Probate Court, in tbe name of tbe devi-see, legatee, or distributee proper, tbe integrity of tbe administration would be more fully maintained, and tbe difficulties arising from collateral issues in that court avoided.

The cases of Graham v. Abercrombie, 8 Ala. 552, and Petty v. Wafford, 11 ib. 143, decide, simply, that tbe assignee of an integral share of an estate may proceed in tbe Orphans’ Court in bis own name, to obtain distribution; but we do not understand that any of tbe decisions have gone to tbe length of bolding, that different parties may be made by assignment of an interest in tbe estate, at partial settlements; or that a distributive share might, by assignment, be split into different portions, and each one having an interest be allowed to proceed in bis own name in tbe Probate Court, for bis portion. My own idea in relation to tbe statute under wbicb these proceedings are instituted (Clay’s Dig. 196, § 23-24), is, t&at it was intended to apply only to distributees and legatees proper, and was enacted for tbe purpose of enabling them, on a proper showing to tbe court, to force tbe executor or administrator to tbe distribution of a fund, wbicb their necessities might require; but to bold that a devise of land may be cut up into different parts, and tbe bolder' of each be entitled to stand in tbe place of tbe devisee, as to all of bis remedies in tbe Probate Court, would, in my opinion, not only be extending tbe operation of tbe statute beyond tbe" intention of tbe legislature, but tbe means of introducing into that court, complexities and difficulties, wbicb its powers are wholly inadequate to meet. Tbe whole object of tbe probate laws seems to have been intended, to limit tbe jurisdiction of the Probate Court to tbe legitimate and natural relations growing out of administrations; to confer upon that court tbe powers necessary for tbe management and distribution of assets, in tbe direction of those who were immediately connected with administrations, such as heirs, legatees, and creditors, without providing for collateral relations wbicb might arise, but leaving those relations to be provided for by courts, wbicb, by tbe possession of more extensive powers and jurisdiction, were more competent to meet and provide for tbe exigency. Tbe cases we have cited require us to recognize, on tbe final settlement of an estate, tbe right of tbe assignee to distribution in bis own name: but a majority of this court think that tbe principle should not be extended beyond tbe decisions referred to.

It follows, from these views, that tbe Circuit Court erred, in reversing tbe judgment of tbe Orphans’ Court; and judgment must be rendered here, reversing tbe judgment of tbe Circuit Court, and affirming that of tbe Orphans’ Court.

LIGON, J.

Tbe record presents two questions for tbe consideration of tbe court; 1st, .Has tbe defendant in error any interest in tbe estate of John Loveless, deceased ? and, 2d, Is bis interest of such a character, that, under our statutes, it can be propounded in, and adjudged by tbe Orphans’ Court?

It appears, tbat be purchased, at coroner’s sale, under execution on a judgment at law, the undivided interest of John and Daniel Loveless, in the real estate of their father, before any partition had been made among the devisees, and while they were tenants in common with eight others. That this interest is subject to levy and sale under execution on a judgment at law, is abundantly established by the decisions of this, and of other courts of the highest respectability in the United States, and that the purchaser at such sale will take the title of the tenant in common whose interest is sold, is equally well settled. Mendenhall v. Randon, 3 S. & P. 251; Black v. Steel, 1 Bailey, 309; 16 Ohio, 271; Den v. Hillman, 2 Halstead, 180; Kelly v. Morgan, 3 Yerg. 437; Durant v. Cabbage, 2 Hill, S. C. 311.

In the case last cited, which was an action of ejectment by the purchaser at sheriff’s sale, against the defendant in execution, to recover his undivided portion in the lands sold, of which the defendant in execution, and the other joint tenants, were in possession, the court would not permit the other joint tenants to become defendants, lest the action of the purchaser might be defeated; but they allowed him to recover, upon the strength of his legal title, acquired by his purchase, and, afterwards, to hold as joint tenant with the others. All the-cases concur in treating the title of such a ¡Durchaser as a perfect legal title, and in substituting him to all the legal rights, to which the joint tenant, or tenant in common, was entitled in the land thus sold.

In the case of Graham v. Abercrombie, 8 Ala. Rep. 552, this court held, that “the interest of a legatee in an unsettled estate is the subject of assignment; and if one is made, it divests the interest of the distributee, so that no proceedings can be had by his representatives against the administrator; his assignee is thereby vested with all his rights, and they may be asserted by him in his own name.” This decision is so well sustained by the reasoning of Mr. Justice Goldthwaite, who delivered the opinion of the court, and the authorities to which he refers, that I regard it impregnable; and I must confess my inability to discover any difference between the rights of one who derives his interest in an undistributed estate through the voluuntary assignment of the distributee, and one wbo acquires sucb rights under a purchase authorized and sanctioned by law, and which all the authorities concur in saying, casts on him a perfect legal title, which he may assert in a court of law.

It seems to be thought, however, that because the administrator, by virtue of our statute, may rent lands, and, in certain contingencies, sell them, that, therefore, the right of the heir or devisee does not vest, until it is ascertained whether the real estate will be needed for the payment of debts. This conclusion is by no means a necessary one from the premises. The rights of the heir or devisee to the lands descended or devised, remain as they were before the passage of these acts. There is nothing in them to prevent the legal estate from vesting in him, on the death of the ancestor or testator; but the rights and powers given to the administrator by statute, are only so many incumbrances on his title, and both he, and a purchaser of his interest, take the title, subject to the legal call of the executor or administrator, should it be needed for the payment of debts, or for distribution. He may pass the title immediately on the death of the ancestor, and as he has a legal interest which he can convey, that interest must, of necessity, be subject to salé on execution for the payment of his debts. 16 Ohio, 271; 1 Barb. 75.

The power of the administrator to sell for the purpose of paying debts, is one conferred on him by the statute, for the protection of the rights and interests of creditors, who, by the policy of our law, are always preferred to the heir; and consequently, it cannot be affected by the act of heir or de-visee, or by any assignment he can make; or, indeed, by any right derived from him, whether it accrue to the party asserting it by the act of the heir himself, or by the act of the law. Until the trust created by the statute in favor of creditors, of which the administrator or executor by statute is made trustee, is fully discharged, no act of the heir, or title derived through him, will be allowed to operate to defeat his power to sell the realty to pay the debts of the ancestor. This proposition, I apprehend, will scarcely be disputed.

The same statute which confers on the personal representative the power to sell real estate for the purpose of paying debts, gives to him similar power for the purpose of making a fair, equal, and beneficial division of sucb estate among tbe beirs, devisees, or distributees. As, in tbe one instance, tbe law constitutes bim trustee for tbe creditors of tbe intestate or testator, so, in tbe other, tbe same law makes bim trustee for those entitled to tbe realty. Tbe law, and not tbe parties in interest, creates tbe trust, appoints tbe trustee, defines bis powers, and points out and regulates the manner of their exercise, as well as tbe contingency on tbe happening of which they shall be called into action. To say, that when this contingency arises, one of tbe beneficiaries of tbe trust can, by bis action alone, defeat tbe exercise of tbe power of tbe trustee, would be to assert a proposition which tbe law, according to my apprehension of it, not only does not sanction, but expressly repudiates. This trust is created, and is to be exercised, for tbe benefit of all who have an interest in tbe real estate. In tbe record before us, it is shown that there are ten devisees; and to bold that any number, short of tbe whole of them, could defeat tbe power of tbe administrator to sell for tbe purpose of distribution, when be makes proper application to tbe Orphan’s Court, and, according to the statute and our practice under it, shows that a fair, equal, and beneficial division cannot be made, among the parties in interest, without it, would be to bold, that tbe declared purposes of tbe law are subject to be defeated by tbe action of a portion of tbe devisees, or distributees. And, if sucb action is allowed to defeat tbe purposes and objects of tbe statute, when they relate to tbe power to sell for distribution, I am not master of any process of reasoning, by which sucb a result, from tbe same cause, would not arise, where tbe object of tbe exercise of tbe power, is a sale for tbe purpose of paying tbe debts. Tbe statute has blended tbe two objects for tbe exercise of tbe power together, and conferred tbe power itself in tbe same words in each case; and that which will defeat its exercise for one, will also defeat it for tbe other.

Having seen that tbe purchaser at tbe coroner’s sale, is tbe legal owner of tbe right and interest of John and Daniel Loveless, in tbe lands devised by their father, I come to consider tbe question, whether this interest is one which be can assert in tbe Orphans’ Court. To my mind, this question is al•ready settled in the case of Graham y. Abercrombie, before cited. In that case, the interest of the assignee of the legatee was propounded in, and adjudged by the Orphans’ Court. In this, the application is made to the same court, by one who, through the sale of the coroner, has become the legal owner of all that ever belonged to the two devisees whose interest he bought, in the lands of the father; and I have no hesitation in saying, that the defendant in error became as fully and amply entitled to all the rights and remedies of Daniel and John Loveless, in respect to the lands devised, as though they had voluntarily assigned them to him. If I am right in this, then the case of Graham v. Abercrombie is decisive of this branch of the inquiry, and is conclusive to show that the Orphans’ Court erred in repudiating the case for the reasons assigned by it.

But it is said, that in the case of Graham v. Abercrombie the question arose on a regular settlement of the administrator’s accounts, and not under the act which authorizes legatees and others to- seek partial distribution, after eighteen months -have elapsed from the grant of letters of administration. It is difficult to, perceive how this can affect the question of jurisdiction in the Orphans’ Court. The persons who are entitled to seek distribution in the two cases, are, according to the language of our statutes, the same. In both statutes the language employed to describe them is identical, and I think it beyond question, that the purchaser of a devisee’s interest, at sheriff’s sale, is a “person entitled to distribution” in the testator’s estate; and it makes no difference at what period of the administration he seeks it, provided the devisee himself would be entitled to the remedy at such period. In short, such purchaser is substituted to all the rights and remedies to which the devisee, whose interest he has bought, would himself have been entitled, had no sale taken place.

That he could, when it was ascertained that it was not necessary for the administrator to make sale of the lands for the payment of debts, or for distribution, compel partition of the real estate in any form of action which the law allows to the devisee, will scarcely be seriously doubted. What, then, is to hinder him from seeking his distributive portion of the purchase money, when the lands have been sold by the administrators avowedly for tbe purpose of making distribution among tbe persons entitled to it ? There certainly could be nothing, provided all tbe parties interested in tbe realty were regularly made parties to tbe application fox the order of sale. It would not be tolerated that, after a sale thus regularly made, tbe devisees, or those claiming under them, either in privity of contract or privity of law, should be allowed to repudiate the sale, and assert their title to the lands devised, against the purchaser at the sale made by the administrator. Having been made parties to the proceedings under which the sale was made, they would be concluded by the decree, and estopped from afterwards setting up title to the premises sold.

This, however, does not appear by the record of this case. It is no where shown that the defendant in error was made a party to the application of the administrators for power to sell the lands. But I do not conceive that there are no other means by which the devisees, or those claiming under them, could be estopped from setting up their title against the purchaser at the sale made by. the administrator. Another, equally as effectual, exists here. The defendant in error, by filing his petition in this case, setting forth his title to the lands ; the sale by the administrator; the price for which it was sold; the value of the rents; and praying distribution of the money arising from such sale and rents, waives, by this record, every objection he could take to any irregularity which existed to his prejudice-fin the proceedings by which it was brought about, and assents to the title of the purchaser, in a manner fully as effectual in law, as he could have done, by being made a party to the proceedings for the sale, or by his deed duly executed for that purpose. He is estopped by the record in this case from ever setting up his title against the purchaser at the administrator’s sale. Bean v. Welch, 17 Ala. Rep. 770.

The power of the administrators to sell the lands for purposes of equal distribution among the devisees, is as full and ample, as it is to make sale of them for the purpose of paying debts, and the proceedings to bring about a sale are the same in both cases. Clay’s -Digest. When the sale is made, the effect of it is, to divest the title of the devisees, and cast it on tbe purchaser; for, tbe order of sale made by tbe Orphans’ Court, vests tbe title in tbe administrator, for all tbe purposes contemplated by it; and if this be regular, or if tbe irregularities are waived by those whose interests are affected by them, tbe title of tbe purchaser, under such sale, can never be successfully impeached by tbe devisees.

Tbe proceedings in this case were commenced under our statute, (Olay’s Dig. 196 §§ 23 and 24) by which it is enacted, that “ any person entitled to distribution of an intestate’s estate may, at any time after tbe expiration of eighteen months from tbe granting of letters of administration, petition tbe Orphans’ Court, setting forth bis claim; whereupon it shall be tbe duty of said court, to grant a rule on tbe administrator, administratrix or administrators, (as tbe case may be,) to make distribution agreeably to law; but no administrator, administratrix, or administrators, shall be compelled to make distribution at any time, until bond and security be given by tbe person entitled to distribution, to refund a due proportion of any debts or demands which may afterwards appear against tbe intestate, and costs attendant on tbe recovery of such debts.” The twenty-fourth section extends tbe benefits of tbe twenty-third to legatees and devisees.

It has been shown that the Orphans’ Court erred, in'repudiating tbe petition of tbe defendant in error, for tbe reasons alleged in tbe answer of tbe administrators with tbe will annexed, and those set forth in its own decree of dismissal. Yet, it-is equally clear, to my mind, that tbe opposite decree of tbe Circuit Court, when its terms are examined in reference to tbe legislative enactments above cited, cannot be sustained.

Tbe decree of tbe Circuit Court is in these words: “It is therefore ordered and decreed, that tbe said administrators, James Smith and William Loveless, pay to tbe said Isaac P. Hall tbe interest of Daniel and John T. Loveless, arising from tbe proceeds of tbe sale of tbe said lands, amounting to eigbty-tbreo dollars, for which let execution issue.” This decree is absolute in its terms, and no where extends to tbe administrators that protection which tbe law throws around them, at tbe time it allows distribution before tbe estate is finally settled. No refunding bond is required to be given, but tbe administrators must pay tbe sum found due, without any indemnity for tbe loss they might sustain if debts or demands afterwards appeared against tbe estate of tbe testator. While tbe law, on tbe one band, will not permit an administrator, upon frivolous pretences, to withhold from tbe heir bis inheritance, after eighteen months have elapsed from tbe date of bis letters; it will not, on tbe other band, allow tbe latter to draw from tbe bands of the former tbe funds of tbe estate, which may be needed for tbe payment of debts, without giving him security that tbe-funds thus withdrawn shall be ready to meet such necessity when it may arise. Tbe failure of tbe Circuit Court to require, by its decree, tbe execution of such a bond, as a condition precedent to tbe issue of execution, is an error for which it must, in my opinion, be reversed,

Tbe requirement of this act is very similar to tbe provision made by law for tbe protection of non-resident defendants in chancery, who have not submitted to tbe jurisdiction of that court; and this court has constantly regarded tbe failure of tbe Chancellor, to require tbe execution of tbe bond provided for in that case, as an error, so fatal that tbe decree would be reversed, notwithstanding it was proper in all other respects. Rowland et al. v. Day, 17 Ala. Rep. 681.

For another reason, also, I think tbe decree of the Circuit Court cannot be sustained. Tbe record from tbe Orphans’ Court does not pretend to set out all tbe proof which was before that court, in relation to tbe amount of money in tbe bands of tbe administrators, arising from tbe sale and rents of tbe lands devised, after tbe defendant in error became interested in them; nor, indeed, does it embody, in any form, so as to constitute them a part of tbe record, any facts whatever, as having been proved or admitted before it, which estabbsbed tbe sum for which tbe defendant in error was entitled to a decree. There is no bill of exceptions in tbe record of tbe Orphans’ Court, embodying tbe evidence there given; there is no recital of proof in tbe decree of that court, by which tbe Circuit Court could be advised of tbe state of facts necessary to be ascertained before a final decree could be understandingly rendered. Tbe Circuit Court, being thus without tbe proof necessary to sustain a decree against tbe administrators, should have gone no further than to reverse and remand the cause. There may be, and doubtless there are cases, in which it would not only be proper, but it would become the duty of the Appellate Court, on reversing the judgment of the court below, to proceed at once to render the proper judgment; but this is not one of that class.

The decree of the Circuit Court should, in my opinion, be reversed, and the cause remanded to that court, with instructions for it to reverse the decree of the Orphans’ Court, and remand the cause to the Probate Court of Tallapoosa county, to be there proceeded in according to the principles laid down in this opinion.

DARGAN, 0. J., concurs in this opinion.  