CHILTON, J.
This was an action brought by tbe plaintiff in error against tbe defendant, as administrator of tbe estate of Walter McBeth, to recover money, which tbe plaintiff, as administrator in chief of tbe same estate, had paid by mistake to John C. & Mary McBeth, who succeeded him in the administration. It appeared that John C. & Mary bad quit tbe administration, and bad turned over the assets of tbe estate to tbe defendant, who was administrator de bonis non, by virtue of bis office, as sheriff of the county. Tbe bill of exceptions does not state that tbe money thus paid by tbe plaintiff through mistake to tbe intervening representatives, was treated by them as assets, or paid over by them to tbe defendant, who succeeded them ; but only shows that tbe assets of the estate passed into tbe defendant’s bands. Tbe court charged tbe jury, that upon this proof tbe plaintiff could not recover.
In our opinion, this charge was correct; for it is very clear that the money overpaid through mistake was not an asset of tbe estate, and that tbe estate could not be made chargeable on *27account of its receipt by tbe administrator de bonis non, but the party who has it in possession has money which, ex aequo et bono, belongs to the party, who, through mistake, has paid it, and is liable, not as administrator, but in his individual capacity, to refund it to the plaintiff. The cases of Houston v. Frazer, 8 Ala. 81" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/houston-v-frazier-6502559?utm_source=webapp" opinion_id="6502559">8 Ala. Rep. 81; and Sellers v. Smith, 11 ib. 264; furnish a sufficient guide as to the manner in which a recovery may be had. It is very certain, that if the defendant has only received the assets proper belonging to the estate (and the bill of exceptions certifies to us, that he has only received such) he cannot be charged by-reason of their receipt for moneys, which a previous administrator of the same estate has. improperly received, and which do not belong to the estate. It is too well settled to require the citation of authority, that an administrator cannot by any act of his create a right of action against the estate he represents, however he may subject himself to personal liability. If he enter into a contract, or give' a note,- as administrator, the estate is not bound, but himself individually, upon such contract or promise.
Let the judgment be affirmed.