The main question presented on this record is, whether the court below erred in refusing to decree in favor of the appellant a balance of over fifteen thousand dollars paid by his intestate on the debts of Robert H„ Jones, deceased. And this may be solved by the discussion and decision of two other questions : 1st, was the payment of the debts of Robert H. Jones, deceased, by appellant’s intestate, under the facts and the law, a gift to the distributees of the estate of said Robert H.; or, 2d, was such payment a valid waiver of the right of appellant’s intestate to be subrogated to the rights of the respective creditors, or to claim a credit for the amount paid them on a settlement of the estate ?
1. All the authorities are harmonious in holding, that delivery is essential to the validity and consummation of a *432parol gift of a chattel or chose in action. But some hold, that an actual delivery is necessary, and others that the delivery may be actual or constructive. Chancellor Kent says: “It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command find dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part, not only with the possession, but with the dominion of the property.” This, perhaps, may be as clear an exposition of the essential elements of the rule, as could well be expressed in so few words. That rule, in its condensed form, may be thus stated, “delivery is essential to perfect a parol gift of a chattel”; and may be said, in this form, to be universal, It has often been found difficult of application, and adjudications, have been made which are conflicting and irreconcilable. These we shall not attempt to, review, but will follow what we conceive to be the current of authority and the ; decisions of this court. There is an apparent conflict between some of the cases decided by this court, as to the terms of the rule and its application, which we will proceed to notice briefly.
In the case of Sims v. Sims’ Adm’r, (8 Porter, 449,) the court held, that delivery of possession is an essential ingredient in a gift of personal property, but that a change of possession is not indispensable; and the court was cautious to say, that it was not called upon to determine “what facts or circumstances would, in law,, amount to a delivery of personal property, so as to consummate a gift.” There is no difficulty in stating facts which would constitute'a valid gift of personal property; but no one, perhaps, can lay down any general or universal rule on the subject, which can solve without a doubt or difficulty every case that may arise in the current of human affairs.
The case of Sims v. Sims’ Adm’r came before this court again, (2 Ala. Rep. 117,) and Chief-Justice Collier, in announcing the opinion of the court, changes the phraseology used in the former opinion, and says, “that it is essential to a parol gift of a chattel that there should be an actual delivery of the thing”; and Ormond,, J., who delivered the *433opinion in 8 Porter, 449, adheres thereto, and dissents from the opinion of Chief-Justice Collier. Goldthwahce, J. neither assents to, or dissents from, the opinions of the other judges, but puts his decision of the ease upon the ground, “that the dominion of the father was never divested”; but it is to be observed, that, in his opinion, he uses the word “delivery,” and not the terms “actual delivery”, — in this respect following Ormond, J. The dissenting opinion of the latter is a very lucid and satisfactory exposition of the law; as is also that of Handy, J., in the case of McWillie v. Van Vacter and Wife, 35 Miss. R. (6 Geo.) 450.
In the case of Durett v. Seawell, (2 Ala. R. 669,) Collier, C. J., again uses the terms “actually delivered” in the same connection. In the case of Pope v. Randolph, (13 Ala. 221,) Dargan, J., in the opinion of the court, uses this language : “If the donor parts with the possession of the chattel itself, for the purposes of the gift, it is sufficient; for this is the only delivery that can be made of the subject of the gift.” This was said in reference to a gift of the hire or use of slaves. It is also said that, “to divest the title of the donor, he must deliver possession of the chattel to the donee, or some one for the donee”; thus, in language and spirit, following the opinions of Ormond, J., supra.
In the case of Jones, adm’r, v. Dyer and Wife, (16 Ala. 224,) Collier, C. J., says, in delivering the opinion of the court, “that it is indispensable to a parol gift of a chattel that there should be an actual delivery of the thing,” following his former opinions; but he impliedly qualifies the rule thus broadly laid down, by saying, “To constitute an effectual delivery, the donor must part with the dominion of the thing, in favor of the donee.”
In the case of Stallings v. Finch, (25 Ala. 522,) Goldthwaite, J., in delivering the opinion of the court, says : “It is indispensable to the validity of a parol gift of a chattel, that the owner should part with his dominion over it.”
In the case of Gillespie’s Adm’r v. Burleson, (28 Ala. 551,) Walker, J., in announcing the opinion of the court, says: 5 While delivery is a necessary constituent of a parol gift, *434it is not indispensable that it should be simultaneous with the words of conveyance.”
The word delivery is more comprehensive than the terms “actual delivery.” A delivery may be actual, or it may be constructive, or symbolical; and we see no reason why the constructive delivery of a chattel or chose in action, accompanied with appropriate words of conveyance by way of a gift, would not be effectual to pass the title to the donee, where the donor parts with his dominion over the thing thus delivered.
In the case of Carradine v. Collins, (7 S. & M. 428,) that learned jurist, Chief-Justice Sharkey, in delivering the opinion of the court, says: “As between donor and donee, the gift of a chattel is incomplete without delivery, or some act equivalent to delivery, if at the time the thing be susceptible of transmission. "We do not say that actual delivery is necessary; it may be constructive, or symbolical; * * * delivery, actual or constructive, is necessary.” — 10 John. R. 294; 1 N. & McC.. 224, 592; 4 B. Mon. 535.
After a careful consideration of the many eases decided, and authors who have written upon this subject, we conceive that the true rule maybe thus stated: delivery, actual or constructive, is essential to the validity or consummation of a parol gift of a chattel; and where the delivery is constructive, it must clearly appear that the donor has parted with his dominion over the thing, in order to pass the title to the donee and effectuate the gift.
The two leading adjudications brought to our attention by counsel, as applicable to the facts of this ease, as to the mode or nature of the delivery of personal property essential to the consummation of a parol gift, are to be found in 10 John. R. 294, and 4 B. Mon. 535.
In the former case it appears, that a father bought a lottery-ticket, and wrote the name of his daughter on it, and afterward it drew a prize of five thousand dollars, which was paid to the father; soon after the prize was drawn, he said “that the ticket did not belong to him — that he had given it to his daughter ”; and this he said at various times. At one time it was said in the family, that the daughter ought to divide with the other children, and the *435father replied, “ No, she should not divide it; the ticket was her own, and the prize-money belongs to her, and she shall have the whole of it, and I will put it in trade for her.’ The daughter was about eight years • old when the prize was drawn, and lived with her father until she was married. In 1806, the mother reminded the father of the prize-money, and requested him to take care of it; and he replied, “You know the ticket was Eliza’s,; the money is hers, and I have kept it in trade for her to a good profit; I will never take a shilling of it, or of the profit: she shall have it all.” The father frequently had said, before and after she was of age, in her presence, that he had given the ticket to her, and endorsed her name on it, and that the money belonged to her. It did not appear that she ever had the actual possession of the ticket or the money. Upon this state of facts, the court say: “ There can be no doubt that delivery of possession is necessary to constitute a valid gift”; and further, after stating the main facts in evidence as above substantially given, the court say, “ They afforded reasonable ground for a jury to infer that all the formality necessary to make a valid gift had been complied with, and the right and title of the plaintiff to the money complete and vested.” The record in that case expressly negatives the idea' of an actual delivery of the ticket; therefore, the delivery spoken of by the court must have been a constructive one, which was thereby recognized as sufficient to pass the possession or title to the daughter.
In the latter case, a father was surety on a note for two of his natural sons. He repeatedly expressed much solicitude for their welfare, and his intention to “ give them, a start ”• — to assist them in their pecuniary affairs. The father afterward voluntarily paid the note; he was not even requested to pay the same by the creditor. He had an ample estate, and had a wife by whom he had several children ; but said that his natural children felt as near to him as his legitimate ones ; that he intended to die without a will, and on that account intended to help them during his life, as they would receive no portion of his estate after his death. Shortly after the payment of the note, he spoke of it as a gift to them, and said he intended to give them five *436hundred dollars more; and he expressed a wish to see them, that he might give them the note, for fear, in the event of his death, they never would get it. They resided about seventy miles from him at the time, and' never saw him after he paid the note. It was also in proof that, a considerable time prior to the payment of the note, he said he had given them all he intended to give them; and at his death the note was found among his other notes. Such were the material facts. The court, in passing an opinion upon them, say, “In this case, it is urged there was no delivery; but, in order to determine what delivery was requisite, it may be inquired in what the gift consisted. The payment of the money in discharge of the note, we think, constituted the gift. The act was complete when the money was paid, if paid, as we have assumed, as a gift. * * The donor had parted with the possession of the thing, and with all control and dominion over it; he could not recall the money paid, nor change the nature of the act. To render the gift perfect, it was not necessary to deliver the note to the donees. "When paid, the note was functus oficio. * * It was not the note, or the delivery, that constituted the gift, but its payment.” And the court upheld the validity of the gift.
If these cases are to be taken and held as a proper application of the general rule on the subject of the delivery essential to the consummation of a parol gift of a chattel or a chose in action, they appear to us as persuasive, if not conclusive, to show the correctness of the decree of the probate court on this question, looking to all the facts contained in this record. Appellant’s intestate, from the evidence, obviously intended to give the money he paid on the debts of his intestate, and not the debts themselves, or the evidence of them; and the declarations of Doctor Jones, as proved by the witnesses McKellar, Woolley, Charles O. Jones, and Doctor Blevins, show that the money was to be paid for the benefit of, and as a gift to the widow and children of Robert H. Jones, deceased; and certainly toas so paid, if the declarations of Doctor Jones, on his death-bed, to his sister-in-law, referred to the facts proved by the witnesses, and were uttered in good faith, and in a sound con*437ditien of mind; which we think is the proper version of this transaction. If not, what other sensible construction can be given to the evidence and those declarations?
2. But, however this may be, we will proceed to the consideration of the second branch of this main issue. The payment of a debt of any kind, by a party primarily bound to pay, or if a person not so bound voluntarily makes payment, is an extinguishment thereof.— Wallace v. Br. Bank at Mobile, 1 Ala. 565; Kenan v. Holloway, 16 Ala. 53; Ross’ Adm’r v. Pearson, 21 Ala. 473; Wray v. Cox, 24 Ala. 337. If an administrator, who has assets sufficient of the intestate to pay debts, or who has not, voluntarily pays them out of his own funds, it is an extinguishment of them. — Prater's Adm’r v. Stinson, 26 Ala. 456. But, in such a case, he will be entitled to a credit for the amount paid, if the estate is solvent, on a settlement in the appropriate court; or, if it be insolvent, he will be entitled to an allowance for money so paid, if the claim be filed and proved as required by law, and to receive thereupon a pro-rata share, with other creditors, of the assets of the estate. — Hearin v. Savage, 16 Ala. 286; McNeill’s Adm’r v. McNeill’s Creditors, 36 Ala. 109.
It is repugnant to the policy of the law to permit a trustee to pay or buy a debt which is payable out of the trust funds in his possession, and to hold as an assignee, with the right to assign it to another. Such a transaction would not only be violative of sound policy and principle, but would be subversive of the divine invocation, “ lead us not into temptation.” After payment by the trustee, the original debt must be treated as functus officio, unless for the purposes above indicated ; and if any action is maintainable, at law or in equity, i't must be for the money so paid, and not on the original debt.
The reason of the rule is apparent, and it should be strictly enforced for the protection of the rights of all persons interested in the trust funds; and especially where minors alone may be interested, who are incapable of having such transactions investigated while recent and susceptible-of exposure. When, therefore, the administrator paid the debts of the intestate, they became, ipso facto, extin*438guished; and if they had been transferred to the widow 'and children, the transfer would have conferred no right of action on them, at least on the original debts. Whether the right to have money so paid refunded out of the assets of the estate, could be transferred by the administrator, so as to authorize the transferree to claim a decree for it on a settlement of the estate in the probate court, or to file a bill in equity to enforce the assignment and the payment of the money, we will not decide, as the question is not presented by the record.
But a trustee, who pays off a debt chargeable upon the trust funds, out of his own means, may, for a sufficient consideration, waive his right to be subrogated to the status of the creditor, orto claim it as a credit on a settlement of the trust. In our opinion, it is clear from the proof that Dr. Jones did not give, or intend to give, the original debts paid by him, or, in other words, the evidence of those debts, to the widow and children of his intestate. But it is equally clear that Dr. Jones, for the love and affection he had for his brother’s widow and children, waived his right to claim the money paid on said debts, and the evidence of said debts, as credits against the estate on a settlement thereof; and it is very perceptible how this would (as he frequently said) be “for the benefit of the widow and children.” He, at least, placed himself in the situation of one who voluntarily pays the debt of another for the benefit of the debtor. It is true that the widow and children were not the debtors; but they were the persons who were the ultimate owners of the fund or property upon which the debts were chargeable, and the persons to be benefited by such payment; and the affection he bore them was the evident and manifest consideration for the waiver.
The facts satisfy us that he intended, and that he executed his intention, to pay the debts of his intestate in Confederate treasury-notes, for the benefit of the persons who alone could be benefited thereby; and that he intended to, and did, waive his right to be substituted to the rights of the creditors, or to claim the payment of the debts so paid as credits on a settlement of his administration of the estate.
*439The reasonable interpretation of what Dr. Jones said on his death-bed is, that he was alluding to declarations he had made to his sister-in-law, similar to those he so uniformly had made to the witnesses and to his mother, as proved by them; and it would be doing injustice to the memory and character of the deceased, who seems to have been endowed with a generous and elevated disposition, to suppose that all he said were mere idle and loose declarations, and were only deceptive and delusive. In that last conversation with his sister-in-law, he evidently referred to the fact that he had paid the debts of the estate, so far as he had paid them, in Confederate money, and conveyed the idea that he had done so for the benefit of herself and children, and not to speculate on them; which would nevertheless be the result, if those debts were allowed as credits on the settlement of his administration, and would make him do what he never intended. And it may be due to the memory of Dr. Jones to say, that we see no evidence tending in the least to reflect on his character; but, on the contrary, his conduct and bearing, as shown by the record, distinguish him as a man of the highest integrity and the noblest sentiments.
4. The bill of exchange drawn by Eobert H. Jones on John H. Jones, payable to Wyatt, and paid by JohnH. on the 22d July, 1864, was paid in the life-time of Eobert H.; and J ohn H. having been appointed his administrator in chief, it should, perhaps, more clearly appear than it does by the record, that John H. was the holder of the bill at the death of his intestate; for, non constat, he may have obtained it from the papers of his intestate, and both have died without cancelling it. But, admitting that Eobert H. never paid John H. the amount the latter paid Wyatt, still it appears by the account-current that J ohn H., on the 1st July, 1864, received on a due-bill of J. H. Jones two thousand nine hundred and fifty-eight 70-100 dollars, and on the 1st October, 1864, he received the sum of six thousand three hundred and ¿sixty-six 05-100 dollars, which sums were more than sufficient to re-imburse the amount he paid on said bill, and all other debts paid by him on account of said estate in that year; and under the facts we hold that *440he so applied said funds' as to discharge the amount so paid by him on said bill, as had a right to do, the estate being then solvent, as appears by the proof.
As to the debts formerly due to Mrs. Bachel Jones from Bobert H. Jones, and which constitute a large part of the balance claimed by the appellant as administrator of John H. Jones deceased, as shown in the record, we have this to say, if those debts were never in fact, or in consideration of law, paid by John H. Jones to Mrs. Jones, then they should not have been allowed as credits on the settlement; and if they were so paid by him, we are satisfied -that they were paid in Confederate money, and therefore come within the influence of the principles applicable to other debts so paid, as hereinbefore announced. The evidence satisfies us that they were so paid by Dr. Jones, and that he or his estate is responsible to Mrs. Jones. Her evidence seems to us conclusive on this point.
In every view, therefore, we take of the main question in this cause, we are of opinion that the court below did not commit any error of which appellant can complain.
4. Appellant’s intestate having paid all the debts set forth in the account, in exoneration of the estate, and for the benefit of the distributees, except, perhaps, the bill of exchange paid Wyatt; and the account and record showing funds more than sufficient to pay any compensation and commissions to which appellant’s intestate is entitled, and for which funds no decree has been rendered against appellant as administrator of John H. Jones, deceased, this court will not reverse the decree of the court below, because no commissions were allowed. At most, it is error without injury. JohnH. Jones received, about fifteen thousand dollars in money, as appears by the account, more than the amount of the bill of exchange which he paid Wyatt, and surely this sum will more than cover his commissions and attorney’s fees.
5. There can be no doubt about the right of trustees to employ counsel to advise and assist them in performance of the duties imposed by law and the trust. But such advice and assistance must be necessary to the protection of the trust estate, or for the benefit of the cestuis que trust; *441or to protect the trustee against the unjust or wrongful claims or demands of the beneficiaries or others. A trustee is not entitled to a credit, on a settlement, for such services, or the value of them, unless he shows payment. 2 Williams’ Exrs. 1581, and note 1; Bendall’s Distributees v. Bendall’s Adm’r, 24 Ala. 295.
In the case of Pinckard’s Distributees v. Pinckard’s Adm’r, (24 Ala. 250,) it appears, at least inferentially, that the fees of counsel claimed as a credit were not paid, and the court allowed the credit; and the case of Bendall’s Distributees v. Bendall’s Adm’r, supra, is the only authority cited to sustain the allowance. But, in the latter case, it appears from the record that the fees had been paid by the administrator ; and it is therefore no authority to support an allowance for counsel fees which have not been paid. It is an authority in point, to show that an administrator is entitled to counsel for his own protection in the rightful discharge of the duties of his trust, and that the trust fund is chargeable with fair and reasonable fees when paid by him.
When an administrator who is an attorney, performs professional services for the estate, not within the scope of his duties as administrator, and which were necessary and proper, he may very properly call upon the court to make an allowance for such services, as he is not allowed to contract with himself, and cannot properly receipt to himself. This is an exception to the general rule above stated.
To allow an administrator a credit for professional or other services rendered by others for the estate, or himself as its representative, without having paid the person rendering them, or, at least, obtained a receipt therefor, would be opening a door to fraud and imposition, which the law is studious and careful in keeping closed to every temptation or opportunity to make any profit out of the trust for himself or others. If the law were otherwise, an administrator might obtain a credit for the value of services rendered the estate by others, and never pay the parties entitled; or if any thing, such portion as he might see proper to pay, or as he had contracted to pay before the credit was actually allowed, thereby giving him the advantage of any excess *442that might be allowed, over the sum contracted to be paid. Appellant had the right to employ counsel; but he -was not entitled to an allowance for any part of the fee, without payment of the same ; and the court did not, therefore, err in its ruling on this question. — See Taylor et ux. v. Kilgore, 33 Ala. 214; Pearson v. Darrington, 32 Ala. 227.
Having disposed of the assignments of error argued by counsel, it only remains for us to say, that there is no error in the record of which appellant can complain, and the decree of the probate court is affirmed.