Dissenting.
In this case I dissent from the opinion just pronounced. Notwithstanding the removal of the administrator from office, the law casts on him the necessity of preserving the effects of the estate remaining in his hands, and he can only discharge himself,' by handing them over to his successor. If the assets are chattels, it would be his duty to institute proceedings to recover them, if taken from him by a wrongdoer, and his failure to do so, would subject him to a responsibility, as was held by this court, in Gayle, Adm’r, v. Elliott, 10 Ala. 264.]
I am unable to perceive any distinction in principle between that case and the present. If a .removed, or resigned administrator, cannot commence, or maintain a suit, on notes taken by himself upon the sale of the property of the estate, where no successor has been appointed, the consequence will be, that much loss may be sustained by the estate, as the debtor may be about to remove, or the bar of the statute of limitations may be nearly complete, and could only be prevented by the commencement of a suit. This power is entirely conservative in its character, and cannot possibly lead to abuse. Whilst, on the other hand, to permit such an objection as this, to be raised by the debtor, that the removed administrator, in whom the legal title remains until his successor is appointed, cannot sue, without showing that any other person has the right to sue, will certainly be productive of the most mischievous results.