We are not satisfied with either the result in this case or the process by which it is reached. In view of the allegation of fraud made against the first administrator and expressions by this court in Martin v. Ellerbe's Adm'r, 70 Ala. 326, and other cases cited on the brief for appellee, we are not inclined to treat the argument against appellee's replication with much favor. But, aside from such general consideration, appellee should not be charged with the duty of returning to appellant the sum of money which appellant gave to appellee's predecessor in the administration as part and parcel of their mutual scheme — as the replication alleges — to defraud the widow of deceased, for whose benefit this action is maintained, nor do the authorities cited to the prevailing opinion hold to any such view. The identity of appellee as administrator de bonis non, so called, with his predecessor who took part in the fraudulent compromise and settlement alleged is not an identity in fact: the fiction of identity is indulged to advance the ends of justice and for no other purpose or end. Damages recoverable in this case are assets of the estate of deceased for a limited purpose only. They are assets for the purpose of distribution only; they are not subject to the payment of debts or liabilities of the decedent; the administrator has no duty in respect of them except to hand them over to the persons entitled thereto according to the statute of distributions; neither the personal representative nor creditors have any claim, right, or title to any part or interest in the damages. Code, § 2486; Griswold v. Griswold, 111 Ala. 573, 20 So. 437; Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225. Now section 2694 of the Code provides that such assets — that is, assets as to which no act of administration, other than distribution, remains to be done — shall be paid directly to those entitled without passing through the hands of the remaining or succeeding administrator. Why, then, this identification of appellee with his predecessor in the administration or why drive him to the futility of a demand upon or suit against his predecessor? It cannot be expected that his predecessor will by acceding to the demand acknowledge his part in the fraud or answer for a fund which needs not pass through the hands of the appellant. Indeed, this court held in Garrett v. Harrison, 201 Ala. 186, 77 So. 712, that, where a party invoked the court to compel a fraudulent administrator to pay into court a fund the product of fraud and collusion, he thereby ratified the settlement in which the fraud and collusion was practiced. Cases cited in the prevailing opinion hold nothing to the contrary of the view here presented. They hold only that the party who would disaffirm a fraudulent contract must return what he has received under it. Neither the appellee nor the widow of decedent, for whose benefit he sues, has received anything in the case at bar.
We dissent.
SOMERVILLE and GARDNER, JJ., concur.
On Rehearing. Application overruled.
ANDERSON, C. J., and McCLELLAN, THOMAS, and MILLER, JJ., concur.
SAYRE, SOMERVILLE, and GARDNER, JJ., dissent.
On Application for Rehearing.