
    JOHNSON’S ADM’R vs. LONGMIRE.
    [BILL IN EQUITY BY EXECUTOR TO ENJOIN PROBATE DECREE.]
    1. jurisdiction of probate court over charitable bequests. — The prohate court has jurisdiction, on the settlement of a testator’s estate, to decide whether a "bequest to charitable uses, which is Tested in the executor as trustee, is or is not valid, and whether it has lapsed.
    2. Payment to sole distributee, of debt due decedent’s estate. — A payment, made in good faith, before administration granted, to the solo dis-tributee of a decedent’s estate, there being no outstanding debts against the estate, operates in equity a discharge of the debtor from liability to an administrator subsequently appointed; but such payment, if made after administration granted, is tortious as against the administrator, and neither discharges the debtor from liability, nor constitutes a ground of equitable relief.
    3. Decree piro confesso against cestui que trust or distributee ; its effect as evidence against trustee or administrator. — As a general rule, where one person is shown to be a mere trustee for another, a decree pro confesso against the latter will dispense with proof against the former; but, in a contest between a debtor and the administrator of a decedent’s estate, respecting the fact and validity of an alleged payment to the sole distributee, (the debt in controversy constituting the entire assets of the estate, and the legality of the payment depending on the time when it was made,) a decree pro confesso against the distributee is not evidence, as against tbe administrator, either of the fact of payment, or of the time when it was made.
    Appeal from tbe Chancery Court at Claiborne.
    Heard before- tbe Hon. M. J. Sappold.
    The bill in this case was filed, on tbe 4th May, 1859, by Garrett Longmire, against P. M. Dennis, as tbe administrator cle bonis non of tbe estate of Beatrice C. Johnson, deceased, John G. Sims, and William M. Longmire; and sought to enjoin tbe collection of a decree rendered by tbe probate court of Monroe, in April, 1859, against tbe complainant, as one of tbe executors of tbe last will and testament of bis deceased father, Garrett Longmire, sr., in favor of tbe said P. M. Dennis, as tbe administrator of Beatrice 0. Johnson, who was a daughter of said Garrett Long-mire, sr.
    
      The undisputed facts, of the case are these: Garrett Longmire, sr., died in February, 1847, baying made and published his last will and testament, which was duly admitted to probate in Monroe county, and of which Garrett Longmire and William M. Longmire, two of his sons, were appointed the executors. The will of said testator, after directing that his debts should be paid, contained a clause in these words : “That two thousand dollars be given out of my estate, one-half to be applied to the distribution of the Bible in the Mississippi valley, subject to the control of the Domestic Mission Board, the other to the Blind Asylum at Tuskaloosa in this State, if carried into effect, and if not, to that of the State of Kentucky;” and by the third clause he devised and bequeathed all the residue of his property, real and personal, to his six living children and the children of a deceased son, to be equally divided among them.
    The executors duly qualified, collected all the debts due the estate, sold all the property, paid all the debts of the testator, and made distribution of the surplus proceeds among the several parties interested; and in August, 1850, a decree was rendered by said probate court, on final set-lement of their accounts, ascertaining the amount due each distributee, and authorizing the executors to retain in their hands two thousand dollars, on account of the charitable bequest above set out. Two or three years after this settlement was made, the distributees came to the conclusion that the charitable bequest was void, or had lapsed, and was subject to distribution as a part of the estate ; and the executors accordingly proceeded to distribute it among the parties in interest. Before this distribution was made, Mrs. Johnson, one of the testator’s daughters, had died, leaving an only son, John G. Sims, her sole heir-at-law and distrib-utee. Letters of administration on her estate were granted to Lewis Johnson, in February, 1853; and in March, 1859, (as the bill alleged, and the answer admitted, though the date shown by the transcript appended to the answer is 1855,) letters of administration de bonis non were granted to said P. M. Dennis. In April, 1859, on the application of said Dennis, the probate court rendered a decree in Ms favor, ás such administrator, against tbe present complainant, as one of tbe testator’s executors, for four hundred and thirty-five dollars, being Mrs. Johnson’s distributive share of the two thousand dollars which the executors had retained on account of the charitable bequest; and the bill was filed to enjoin the collection of this decree.
    The bill alleged, that, at the time tMs two thousand dollars was, distributed by the executors, there was no legal administration on the estate of Mrs. Johnson; that her estate owed no debts; and that her distributive share of the legacy was paid by William M. Longmire, one of the executors, to John G. Sims, who, as her only distributee and heir- at-law, was authorized to receive and receipt for it. The defendant Dennis stated, in Ms answer, that John G. Sims was not twenty-one years of age at the time of Ms mother’s death ; denied all knowledge of the time when the alleged distribution of the fund was made; and insisted that the payment of Mrs. Johnson’s share could only have been legally made to her administrator. Decrees pro con/esso were regularly entered against John G. Sims and William M. Longmire, on publication against them as nonresidents.
    To prove the payment to Sims, the complainant took the depositions of James M. Longmire, who was his own son, and of Mrs. Sarah J. Longmire, who was the wife of the defendant William M. Longmire. The defendant Dennis objected to the competency of Mrs. Longmire as a witness, and took the depositions of several witnesses for the purpose of impeaching the testimony of J. M. Longmire. On final hearing, on pleadings and proof, the chancellor declined to pass upon the objections to evidence, but rendered a decree for the complainant, perpetually enjoining the collection of the probate decree; holding, on the authority of the case of Harrison v. Harrison, (9 Ala. 470,) that the probate court had no jurisdiction to decide that the charitable bequest was void, or that it had lapsed. The chancellor’s decree is now assigned as error,
    Torrey & Leslie, for appellant.
    DargaN & Taylor, contra.
    
   R. W. WALKER, J.

It is obvious tbat tbe only questions, wbicb tbe parties intended to raise by tbe pleadings and evidence, were as to tbe fact and effect of tbe alleged payment to Sims. Tbe chancellor, however, without considering these questions, held, tbat tbe executors took tbe charitable bequest of $2,000 as trustees; tbat tbe probate court bad no jurisdiction to declare these bequests invahd, or lapsed; and, tbat, for this reason, its decree distributing tbe fund Was void. Tbe case of Harrison v. Harrison, (9 Ala. 470,) wbicb is cited in support of this view, does not sustain it. We are satisfied tbat, in tbat case, tbe court intended to go no further upon this subject, than to deny to tbe probate court jurisdiction to enforce or settle trusts created by will. It seems clear, tbat tbe court of probate, in exercising its jurisdiction to administer estates, must have tbe power of passing upon tbe validity of tbe bequests of a will, even though they create, or are coupled with, trusts conferred upon tbe executors, or on third persons. Tbe authority of tbe court to do this was not questioned in tbe case referred to. On tbe contrary, in tbat very case, tbe right of tbe court to declare .the invalidity of a bequest creating a trust, is expressly recognized. — See pages 475, 477-8. Nor do we see any reason to doubt tbe authority of tbe probate court to pass upon the vabdity of a bequest to charitable uses. If such a bequest is invalid, it cannot bar an application for distribution by tbe next of kin, or tbe residuary legatee, as tbe one or tbe other may be entitled ; and tbe court would be incompetent to make distribution among those entitled, if it has not tbe power to decide upon tbe validity of such a bequest when interposed as a bar to distribution. — See Alston v. Coleman, 7 Ala. 795; May v. May, 28 Ala. 141 (152); Gould v. Hayes, 19 Ala. 449 ; Carroll v. Brumby, 13 Ala. 102 ; Billingsley v. Harris, 17 Ala. 214; Gerald v. Bunkley, ib. 170, 177. It follows, tbat tbe mere fact tbat these were charitable bequests, or so designed, and tbat tbe executor was appointed trustee to carry them out, did not impair tbe authority of tbe probate court to determine whether they were void, or bad lapsed.

2. Sims, to whom tbe payment is alleged to have been made, was the sole distributee of Mrs. Johnson, and - her estate owed no debts. Mrs. Johnson died in 1852, and in February, 1853, Lewis Johnson was appointed her administrator. He died in 1854, and the defendant Dennis was, in March, 1859, (1855?) appointed administrator de bonis non. Where there is a sole distributee, and the estate owes no debts; and, before the administration granted, the property is reduced to possession by the distributee, he will in equity be protected in the possession against the claim of an administrator subsequently appointed.—Vanderveer v. Alston, 16 Ala. 494; Marshall v. Crow, 29 Ala.; Spann v. Jennings, 1 Hill’s Ch. 324; Henson v. Wallace, 1 Rich. Eq. 22; Walker v. May, 1 Bailey’s Eq. 58; Lewis v. Lyons, 13 Ill. 117; Maxwell v. Craft, 32 Miss. 307; Anderson v. Brunefield, ib. 107; Bogart v. Furman, 10 Paige, 496; Lacy v. Williams, 8 Texas, 182. In like manner, a bona fide payment to the sole distributee, of a fund to which such estate is entitled, made before administration granted, would operate in equity a dischage of the party paying from liability to an administrator subsequently appointed. But the authority of the probate court to grant administration, even though there is but one distributee, and the estate owes'no debts, cannot be questioned; nor can it be doubted, that when such administration is granted before the property has been reduced to possession by the dis-tributee, the rights of the administrator are, as to the personal estate, exclusive, and he alone can give a valid discharge upon payment of a demand due the intestate.— Beattie v. Abercrombie, 18 Ala. 9 ; Jenkins v. Fryer, 4 Paige, 51. Hence, a payment to the sole distributee, while there is a pending administration, is tortious, as against the administrator, and cannot work a discharge of the liability, or constitute a ground of relief in equity. "Whether the rule might be different, in case the payment were made, bona fide, under a mistake of fact, not arising from neglect, as to there having been a grant of administration, we need not now inquire. Neither is it necessary for us to determine whether a court of chancery would require the sole distributee to pay over all money received by him, after administration granted, merely that the administrator may be paid, bis costs and commissions. Tbe contest bere is between tbe administrator and tbe debtor; and certainly it would be contrary to legal principle, as well as productive of mucb confusion, to allow parties owing an estate to pass by tbe administrator, whose right to collect is universally known to be exclusive, and make payment direct to tbe distributee.

8. Tbe only witnesses examined to prove tbe payment, are J. M. Longmire, and Sarah J. Longmire. Of these two, tbe former is successfully impeached by tbe testimony introduced by the defendant; and tbe latter is incompetent, because her husband (who is a party to tbe suit) was a co-executor with tbe complainant, and jointly bable with him on bis bond as executor.— Wilson v. Sheppard, 28 Ala. 278; 1 Greenl. Ev. §§ 335, 341. But Sims, tbe sole distributee, is a party to tbe suit; and a decree pro confesso was taken against him, which has tbe same effect as an answer admitting tbe allegations of tbe bib. And it is insisted for tbe complainant, that as Dennis, tbe administrator de bonis non, is, as to tbe whole* fund in controversy, a mere trustee for Sims, this admission by Sims, tbe cestui qvi trust, of tbe fact of payment,, is sufficient proof of it as against Dennis, tbe trustee. It is true, as a general rule, that where one person is shown to be a mere trustee for another, tbe decree pro confesso against tbe latter will dispense with proof against tbe former. — See Hartley v. Bloodgood, 16 Ala. 233 ; Julian v. Reynolds, 8 Ala. 683; Moore v. Hubbard, 4 Ala. 192 ; Johnson v. McGillory, 1 J. J. Marsh. 321; Koen v. White, Meigs, 358. But this principle is not applicable to this case. Tbe abeged payment to Sims, tbe sole distributee of Mrs. Johnson, if made at ab, must have been either before or after tbe appointment of her administrator ; and tbe answer to tbe question whether before or after that time, must determine tbe legality of tbe payment. Tbe payment, if made, was either entirely right, or entirely wrong; entirely right in such a case as this, if made before administration; entirely wrong, if made after-wards ; for it would subvert tbe whole theory of administrations, if we were to permit a mere stranger to distribute an estate, in usurpation of tbe functions of tbe legaby appointed personal representative. II, then, this fund bas been paid to Sims, tbe right of tbe administrator now to recover it depends upon tbe time of sucb payment. It is an important fact in tbe case, shown by tbe pleadings, that this fund constitutes tbe whole unadministered estate of Mrs. Johnson. Hence, if tbe administrator bas tbe right to receive it, be will not be a mere trustee for Sims, as to tbe whole amount, for it will be chargeable in bis bands with tbe proper costs of administration. It would be so chargeable, even in tbe bands of tbe distributee, if paid to him after administration granted. There is then, in tbe settlement of tbe question as to when tbe alleged payment was made, an antagonism of interest between tbe administrator and tbe distributee. A party cannot be allowed by bis own evidence to relieve a fund in which be is interested from what another claims to be a legal charge upon it. So, where tbe question is as to whether, or to what extent, a party claiming a fund is trustee for another, tbe admission of tbe cestui que trust is not evidence against tbe trustee, and tbe facts establishing tbe existence or tbe extent of tbe trust, as tbe case may be, must be otherwise proved. If it were shown by evidence 'aliunde that tbe payment to Sims, if made at all, must have been made before administration, then tbe decree pro confesso against Sims might be evidence against tbe administrator, of tbe fact of payment. But there is no sucb independent testimony, there being, as we have seen, no other evidence on tbe question of payment, to which we can look. We have, then, tbe question of an admission by tbe beneficiary, which, on one hypothesis, is, and on tbe other is not, evidence against tbe administrator, with no proof of either hypothesis save tbe admission itself. In sucb case, tbe party asserting tbe competency of tbe evidence must fail, because be fails to solve tbe doubt, tbe removal of which is a condition precedent to tbe admissibility of tbe evidence. It follows, that tbe decree pro confesso against Sims is not evidence against tbe administrator, of a payment to Sims before administration granted; and consequently, according to tbe principles above laid down, the complainant bas not made out a case for rebel

Reversed and remanded.  