
    James M. Turner vs. John R. Chambers, Guardian ad litem of the infant heirs of Thomas W. Burge.
    The remedy to enforce the right of creditors to pursue the estate of the testator in the hands of legatees, after the executor or administrator has assented to the legacies, is in equity to compel them to refund.
    T. administrator de bonis non, c. t. a.-, of B., deceased, who had paid certain debts of the testator out of his individual funds, filed his petition in the probate court to subject certain slaves specifically bequeathed, to the payment of the sum advanced by him, they being the only assets left; by his petition he showed that he was guardian of the specific legatees, and that the slaves bequeathed were in his possession as guardian; that as guardian he employed their services for the maintenance of the legatees, and that a former guardian of the legatees, had inventoried in the probate court the slaves as the property of the legatees ; held, that the slaves having thus, if nothy order of court, with the administrator’s assent, passed into the guardian’s hands, would not have been subject even to a fieri facias against the goods of the testator; and the probate court properly dismissed the petition.
    On appeal from the probate court of Lawrence county ; Hon. Mathew B. Cannon, probate judge.
    James M. Turner alleges in his petition, that as administrator de bonis non of Thomas W. Burge, deceased, he had paid out of his own private funds in payment of debts against the estate, the sum of five thousand seven hundred and thirty-five dollars, as appeared by his accounts to the probate court.
    That he was appointed by the probate court successor to A. S. Eldridge, as guardian of the minor heirs of said Thomas W. Burge, deceased, and that he still held that office over all but Beverly B. Burge. That Eldridge, as guardian, returned into the probate court as the property of said minor heirs, certain slaves, which, by the will of Burge, were specifically bequeathed to them, as by the will would appear. This return was made by Eldridge without any reference to the outstanding claim of petitioner.
    When he succeeded Eldridge as guardian, being willing to suspend the collection of his claim for a time on account of the necessitous condition of the children, who were then in extreme want and very young, he continued to report to the court his guardianship accounts of the proceeds and hire of the negroes, and to appropriate them to the use and support of the minors, as though entirely unaffected by his claim.
    That these slaves had never been delivered to the guardian of the minors by any order of the court; nor had the administrator of Burge any authority to deliver them over, as his estate was yet altogether unsettled.
    That part of these slaves were in the possession of Beverly B. Burge’s guardian, and petitioner was apprehensive they would be removed. That there were no other assets or property of the estate unadministered, and he had no recourse for the payment of his debt but to these slaves.
    
      He prayed, therefore, that the slaves might be transferred from his account as guardian to his account as administrator, and might be appraised and sold to pay his debt.
    The probate court appointed John R. Chambers guardian ad litem of the infants, who were made defendants to the petition.
    It is not necessary to set out the answer of the guardian ad litem. The probate court dismissed the petition, and the petitioner appealed.
    
      J. F. Foute and Robert Golladay, for appellant.
    1. The probate court had jurisdiction of the petition; Turner was administrator, and the petition related to the matters of administration ; the object of the petition being to have certain slaves appraised as the property of the estate, which had been ■theretofore erroneously in his hands as guardian.
    2. There was no assent to the vesting of the legacies in the minors; Turner says the administrator had no authority so to act; he had the slaves still in his possession, and manifestly •looked to them as his indemnity for the money paid by him. It was a mere act of humanity that induced Turner to give the wards the benefit of the hire and labor of the slaves, and he ought not to be punished for his liberality.
    3. Were such assent given under our law, a probate court has power to rebate legacies to satisfy claims against the estate, on application by a creditor. 2 How. (Mi.) 624, 813, 861; 3 Ibid. 258 ; Green v. Green, 3 S. & M. 270 ; 10 Pet. 567; Com. Dig. tit. Administrator, C. 1; 2 Leigh’s Rep. 70 ; 2 Pick. 517; Harper v. Archer, 8 S. & M. 229.
    
      Vatmerson, for appellee.
    1. The case presented is not one of intestacy or of a character testamentary; it has no connection with either, as it presents nothing in the course of administration, but is a distinct and individual claim in the right of petitioner against the legatees, who have received and are in possession of the property. Consequently the probate court had no jurisdiction of it.
    2. The filing, stating and settlement of an account by an administrator or guardian in the probate court, showing a balance in favor of such administrator or guardian, is not evidence to charge the heir or ward. 1 How. (Mi.) R. 53, 63.
    3. The capacity of administrator and guardian, although in the same person, is separate, distinct and independent of each other, and he cannot be pursued in the same suit in the double capacity of administrator and guardian; neither can he so act. 1 How. (Mi.) R. 365.
    4. The capacity of administrator and guardian being separate, he, as administrator, is a stranger to the doings of the guardian, and a mere stranger cannot move in the probate court for the revocation of letters of guardianship. Cotton v. Goodson, 1 How. (Mi.) R. 295.
    5. There is nothing in the law authorizing the guardian to create debts or make expenditures at his discretion. 1 How. (Mi.) R. 53.
    6. The court of probate has no power to release the complainant from his liability as guardian, otherwise than on a final settlement of his accounts as such; nor has the court any power to deliver over the property which the complainant shows by his bill or petition, that he has been managing as guardian, and making his annual reports of such his actings, and place the same into the hands of .the administrator of Thomas W. Burge, to be subject to debts, especially when it is shown that the legacies have vested in the legatees of which complainant is guardian.
    7. Although the will of Thomas W. Burge may have directed the payment of his just debts before distribution and payment of the legacies, yet the supposed debt created by the complainant in favor of himself, whilst acting as administrator de bonis non against said estate, is not a debt within the meaning of the law governing the construction of the will, because the said supposed debt was not a subsisting one at the testator’s death. Green v. Green, 3 S. & M. 256, 270.
    8. The legatees had a right to the property bequeathed on the payment of the debts, owing by the testator at the time of his death without the assent of the executor, and could have maintained an action at law for it. 2 S. & M. 530.
    
      9. The record does not show that the complainant returned an inventory, or that this was done by his predecessor ; and the court will presume that this was not done; and the law is that an omission by an executor or administrator to make and exhibit an inventory, is evidence of assets sufficient to pay the legacies, and every legatee may recover his whole legacy at his hands. 5 Am. Com. Law, 313, and authorities cited.
    10. An administrator cannot voluntarily pay debts of the estate, although just and regularly probated and allowed, out of his own private funds, and thus at his own will constitute the estate his debtor; but if the money on hand of the estate is insufficient for that purpose, he must stop paying. If there be property belonging to the estate under such circumstances, he must make the proper representation to the probate court, and obtain an order to sell the personal, and if necessary, the real estate.
    11. An administrator is not bound or liable for the payment of debts beyond the amount of assets in his hands as such; and if he does pay more than the assets amount to, he pays it at his own risk; nor does such payment constitute in him any claim, or give him any lien upon the legacies or distributive shares, that may have been paid off or distributed, not even in case there were refunding bonds given to him.
    12. The payment of debts irregularly, voluntarily, and against the requisitions of the statute, by an administrator, gives him no right in law to seek a reimbursement from the effects of the estate.
    13. An administrator cannot contract with another by which he can make the estate liable for such contract; but in all such cases, the contract so made is construed to be his own contract, and he alone in his natural capacity is liable.
    14. The remedy of complainant here, if any, is in equity.
   Mr. Justice ThacheR.

delivered the opinion of the court.

Turner petitioned the probate court of Lawrence county, and set forth the following allegation. As administrator de bonis non of Burge, deceased, he paid certain debts, from his individual funds, which were due from the estate. Thereupon, he claims that certain slaves, specifically bequeathed to the minor Leirs of Burge, should be subjected to the liquidation of his claim against the estate, there being no other assets to respond the same. But it is shown by his petition, that Turner is alsq guardian of the minor heirs, save one, and that in that capacity he has employed the proceeds of the labor of the slaves for their maintenance and benefit. Turner, as guardian of the heirs, became so as successor of Eldridge, and the petition shows that Eldridge, as guardian, returned into the probate court the slaves as the property of those heirs. This shows that the slaves had passed into the possession of the guardian, if not by an order of court, certainly with the assent of the administrator. Under such circumstances, the slaves would not have been liable even to be levied under a fieri facias against the goods of a testator in the hands of the executor or administrator, notwithstanding that the executor, being guardian of the legatee, continues as guardian to hold them, hiring them out. Lomax on Ex’rs and Adm’rs. 2, 134 j 5 Mumf. 103; 3 Ibid. 99, 559; 1 Wash. 312. The remedy to enforce the right of creditors to pursue the estate in the hands of legatees, after the executor or administrator has assented to the legacies, is in equity to compel them to refund. Lomax, 2, 174.

The probate court of Lawrence county dismissed the petition in that court, which judgment is affirmed.  