
    ABNEY, ADMINISTRATRIX, vs. PICKETT.
    1. An administrator de bonis non is only entitled to the assets of tbe testator or intestate which remain in specie, unadministered by the executor or administrator in chief. "
    2. when the testimony is clear and without conflict, and it is only necessary to j draw a legal conclusion from it, it is not error for the court to charge the jury, j that, if they believe the evidence, they must find for the party whose case Is / thus made out. J
    
    Error to tbe Circuit Court of Sumter.
    Tried before the Hon. Turner Reayis.
    Assumpsit by tbe plaintiff in error, as tbe administratrix de bonis non of Hardy Abney, deceased', against Martin Pickett, tbe defendant in error. Tbe cause of action is thus endorsed on tbe writ: “ This action is founded upon tbe following facts: Hardy Abney, in bis lifetime, held and owned a note made by John M. Stewart, for about $230, payable to Jesse Cage; which note tbe defendant collected, and appropriated to bis own use, since tbe death of said Abney.” Common counts were added.
    Tbe bill of exceptions shows tbe following state of facts: On tbo first of January, 1844, John M. Stewart made to Jesse Cage bis due bill, for $232T\\; on tbe fourth of April, 1845, Hardy Abney, having said due bill in bis possession, called on Stewart for payment of it, and received from tbe latter $82tVtd iQ part payment of it; but at this time Abney did not claim tbe note as bis own, but demanded payment on it as tbe note due to Jesse Cage. Cage sold the note to one Bissell for $50, to whom Abney went, representing himself as tbe friend and agent of Cage, and stating that Cage was drunk when be sold tbe note, and after paying Bissell the $50 advanced by him took tbe note into bis possession; said note was never assigned, or otherwise transferred in writing to Abney. Abney died in tbe spring of 1845, and Cage in tbe following autumn. Letters testamentary on tbe estate of Ab-ney were granted to one Hart, and Martin Pickett became tbe executor and sole legatee of Cage. Abney’s executor, on obtaining a knowlege of tbe facts under which bis testator got possession of said note from Bissell, surrendered it to Pickett, as tbe executor of Page, and the latter paid him $50, the amount advanced by Abney to Bissell. For the sum thus received from Pickett Hart accounted, on the final settlement of his administration, on Abney’s estate.
    It was further shown, that said Cage was an illiterate man, and that Abney, as his friend, was in the habit of making settlements for him. When Abney died, no credit had been entered on said note for the $82T2/F paid by Stewart; but on his making out an account, and verifying it, Hart, the executor, allowed it to him; and this appears in his final settlement. The note was never otherwise accounted for by him, than as above stated.
    On these facts, the court charged the jury, that, if they believed the testimony, they must find for the defendant; to which the plaintiff excepted. The charge of the court is the only error assigned.
    JAMES 0. Williams, for plaintiff in error.
    JNO. F. Yary, contra.
    
   LIGON, J.

— There is no error in the charge of the court. The proof is very clear, that the plaintiff’s testator acquired the possession of the note as the agent of Cage, the payee, and that he claimed no interest in it. When Stewart made the partial payment, which he proves he did make, he testifies that Abney spoke of the note as due to Cage. It was never endorsed to Abney, and it is fair and legitimate to infer, that he only held it as agent for the payee until the time of his death. When he received tlie $82 fW from Stewart, he was overpaid the amount he advanced to Bissell to procure the note from him, and was left without any pretext on which to found a claim to the note, or any part of its proceeds; and his executor acted both rightly and prudently when he surrendered it to the executor of Cage, without attempting to litigate his title to it.

Again; the present plaintiff cannot set up any title to the proceeds of the note, even if it were in fact the property of Abney’s estate, for she is an administratrix de bonis non, and it is well settled that such an administratrix is not entitled to tbe assets of tbe testator’s estate, except so far as they remain in specie, and unadministered by tbe executor. Here it is distinctly proved, that Hart bad disposed of this note, accounting with tbe Orphans’ Court for all that be bad received upon it which properly belonged to bis testator’s estate, and receiving credit in bis account for tbe sum be was compelled to pay out on account of moneys which testator bad received on it, above tbe sum be bad advanced to Bissell. If be bad acted improperly in respect to it, be alone was accountable to tbe representative or legatees of tbe estate of Abney. He bad, in fact, fully administered upon it. Swink’s Admr. v. Snodgrass, 17 Ala. 653, and authorities there cited.

But it is contended that tbe facts did not authorize tbe court to charge so pointedly in favor of tbe defendant. We have repeatedly held, that where tbe testimony is clear, and without conflict, and it is only necessary to draw a legal conclusion from it, it is not error for tbe court to charge tbe jury, that if they believe it, they must And for tbe party whose case is thus clearly made out; and such is this casey Hopkins v. Scott, 20 Ala. 179, and authorities there cited.

There is no error in tbe record, and tbe judgment/is affirmed.  