BRICKELL, C. J.
The bill was 'filed by the appellee, as a creditor of Martha A. Hood, deceased, the widow of Archibald Hood, deceased, against the appelllant as executor of the will of said Archibald, to compel him, from the assets of his testator, to pay the debt owing by said widow at her death. The will of Archibald Hood contains these clauses : The first is a devise of real estate, and a bequest of personal property, including five hundred dollars in money, to his widow, said Martha A., during her life ; the second is a devise and bequest of the residue of his estate, after the payment of his debts and funeral expenses, and the setting apart to his widow of the property, real and personal, given her for life, to be equally divided between his children; and the third provides that, after the death of his widow, and after defraying her funeral expenses, and paying her just debts, the property given her for life should be equally divided between those persons who are named. The appellant, as executor, assented to the devise and bequest to the widow, surrendering to her possession of the property, real and personal, and paying her the money bequeathed. After the death of the widow, the appellee, as her executor, without retaining for the debt due him from her, returned to the appellant the property in which the widow had a life-estate, except the money, which may have been partially refunded; and he divided it among the remaindermen.
1. An executor, or administrator, is not suable in his representative capacity, unless it is on a claim or demand arising from the act or default of the testator, or intestate ; or on claims and rights of distributees or legatees to participate in the distribution of the assets. — 2 Redf. Wills, 251. The remedy of creditors of the intestate, or testator, against him, in the absence of special facts or circumstances rendering it inadequate, is exclusively in courts of law. It is certainly true that a testator may charge his estate with the debts of a third person, and a resort to equity may be necessary to enforce the charge. As this is the theory of the bill, we will inquire how far such charge has been created.
2. We can not assent to the argument, that the testator *321lias converted the funeral expenses, and debts of the widow owing at her decease, into his own debts. If the argument was admitted, it would be fatal to the appellee’s right of recovery in the present suit. The remedy would be against the appellant at law, in his representative capacity; and, so far as appears, that remedy would be adequate, excluding equitable interference. The funeral expenses and debts of the widow are charged on the property in which she had a life-estate, and the residue of the estate — that which passes to the testator’s children under the second clause of the will —is not subject to the charge. The testator contemplated the existence of such residue, and subjects it to no other charge than the payment of his own debts and funeral expenses. The gift to his children is of an entire, not a partial interest, and there is no indication of any purpose to postpone its possession or enjoyment until the death of the widow. Nor is there any indication of a purpose to subject it to diminution or exhaustion by any act of the widow, as it would be if it was charged with the payment of her debts and funeral expenses. This residue is that part of the testator’s estate remaining after the payment of his debts and funeral expenses, and after the property, real and personal, devised and bequeathed to the widow for life, has' passed to her, and vested in possession. The remainder in the property devised and bequeathed the widow for life can not, in express terms, take effect, until her funeral expenses are defrayed, and her just debts are paid. Until they are paid, the remaindermen could not compel the surrender of the property to them.
It cannot be insisted that the children, who take the residue under the second clause of the will, could not have compelled its payment and delivery to them, after the lapse of eighteen months from the grant of letters testamentary, though the widow was in life ; nor that there would have been any right in the executor to have required from them bonds to refund, for the payment, at the death of the widow, of her debts, &c. It is too plain for doubt or controversy, that the funeral expenses and debts of the widow are chargeable only on the property in which she had a life-estate. They are not debts of the testator, with which the appellant can be charged in his representative capacity. If any part of the property in which the widow had a life-estate was in his possession as executor, he would be, with the remainder-men, subject to a suit to enforce a charge against it for the payment of the debts. But there was none in his possession. He had assented to the devise and legacy to the widow, delivering the property to her; thereby assenting, not only to *322the gift of the life-estate to the widow, but to the gift to the remaindermen; divesting himself of all title, and clothing the life-tenant and remaindermen with the entire estate, legal and equitable.—Hunter v. Green, 22 Ala. 326; Nixon v. Robbins, 24 Ala. 663" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/nixon-v-robbins-6505322?utm_source=webapp" opinion_id="6505322">24 Ala. 663; Gibson v. Land, 27 Ala. 117" court="Ala." date_filed="1855-06-15" href="https://app.midpage.ai/document/gibson-v-land-6505574?utm_source=webapp" opinion_id="6505574">27 Ala. 117.
It is not of any importance that, on the death of the widow, the property was delivered to the appellant. His title and duty as executor was not thereby restored. He was, at the election of the remaindermen, their bailee ; and, when he surrendered it to them, he was acquitted from all liability. Nor is it material, that the appellant may, as executor, have paid debts of the widow owing to other persons. Such payments were made in his own wrong, under a misconception of his authority and duty; have in them no element of estoppel, and afford no reason for compelling him to further wrong.
4. There is still another ground, fatal to the appellee’s right of recovery. The property, charged with the payment of the debts of the widow, on her death passed into his possession, as her executor. His right to retain for his own debt, from that property, stands upon the same ground as his right to retain from the personal assets of his testatrix. Without payment of the debt, the remaindermen could not have compelled him to surrender. Yoluntarily he surrenders the property to a bailee of the remaindermen; for in no other light could the appellant be regarded. An executor or administrator, with full knowledge of outstanding debts, volunteering to pay legacies, or make distribution, can not, if the assets prove deficient, compel the legatee or distributee to refund. — 2 Redf Wills, 556; 2 Lomax on Ex’rs, 297; Alexander v. Fisher, 18 Ala. 374. Theruleisnotinfiexible;buttheremustbe some fact or circumstance,relieving the executor or administrator from the presumption of negligence, and evincing good faith on his part, or it can not be departed from. The rule applies to the present case ; it was the fault of the appellee that he did not retain for his debt — he had the assets chargeable with it, and voluntarily surrendered them. If he sustains loss, it is his own neglect -which indicts it, as it is the want of prudence of the man who, with full knowledge of all the facts, pays money for which he is not liable.
The decree of the chancellor must be reversed, and a decree here rendered dismissing the bill, at the costs of the appellee in this court, and in the Court of Chancery.