The statutes declare all the property of a decedent, except as is otherwise provided, is charged with the payment of his debts, and for that purpose may be sold, if necessary. With much of particularity, the order in which the debts are to be paid is prescribed, and the personal representative is prohibited from giving preference of payment, before the expira*122tion of eighteen months from the grant of administration. — Code, §§ 2078-80. Upon claims or demands against the decedent, the personal representative can not be sued until after six months, nor can judgment be rendered against him, until eighteen months after the grant of administration. — Code, § 2263. The order of payment of debts is not only particularly described and declared; a want of authority in the personal representative to depart'from or disturb it, is also declared, and all necessity or reason for such departure or disturbance is avoided by the protection afforded him against the rendition of judgment, until the period for the presentation of claims has expired. “It follows,” as was said in McNeill v. McNeill, 36 Ala. 117, "that if an administrator, within eighteen months, pays in full a debt not within the preferred class, the estate being insolvent, he gives a preference in violation of law, and does so by making a payment when the law does not require it. The making of payment at such time involves a hazard voluntarily assumed; and if loss results, he must sustain it, and can not distribute it among the creditors of the estate, by obtaining an allowance to himself of the full amount of the claims so paid.” The same principle is announced in Hearrin v. Savage, 16 Ala. 286; Byrd v. Jones, 84 Ala. 337; Jackson v. Wood, MSS. The only right of the personal representative, making such payments, as is settled by these authorities, is, substitution or subrogation to the rights of the creditors whose claims he has discharged, taking the share of the assets to which they would have been entitled.
It is insisted the claim paid Turrentine, due from the intestate as the assignee or trustee in a general assignment, because of its trust character, should be withdrawn from the operation of this principle. If the funds the intestate received in his relation of trustee had been preserved, distinguishable from his own funds, capable of identification, they would not have passed to the personal representative as assets for administration. His duty in reference to them would have been that of a depositary — the custody and preservation of them in their condition of identification, and the delivery of them on demand of the succeeding trustee or assignee. But this was not the condition of the funds; in his life, the intestate had commingled them with his own funds, con*123verting himself into an absolute debtor, instead, of a trustee bound only to the duty of keeping them safely, and on demand distributing them to the cestuis que trust. The Court of Probate erred in allowing the administrator a credit for this payment.
An executor or administrator has the full legal title to the choses in action of the deceased, and is charged with the duty of collecting and reducing them to possession; he may transfer, release, compound or discharge them., as if he was the absolute owner, subject only to his liability to answer to creditors and distributees, for improvidence in the exercise of the power — for the want of the care and diligence, the incident of his relation. — 3 Brick. Dig. 464, § 139. If the choses in action are subject to pledges, liens or charges, created by the decedent in his life, he takes the legal title cum onere ; but he is not freed from all duty or liability in respect to them. He may compel the creditor holding them to their care, and the prompt application of them to satisfy the pledge, lien or charge ; and if more should be derived from them than is necessary to satisfaction, he must be diligent in its collection. He succeeds to the right of redeeming them, or of removing the lien or charge, and he is bound to prudence and diligence in the exercise of the right. If he has funds in his hands, which may be so employed, and the choses in action are of greater value than the demand for which they may be pledged, or the lien or charge to which they are subject, it is his duty to redeem them, or to remove the lien or charge. This duty he is bound to exercise with the care, prudence and diligence, the inseparable incident of his trust relation, and for his failure to exercise it, he would be personally answerable. The value of the choses in action, redeemed from the Bank of Athens, from Mrs. Jackson, and Mrs. Beasley, exceeded the debts for the payment of which they were pledged. This being true, the administrator, having funds which could be so applied, properly redeemed them. He accounted for the full value of the choses in action, and was properly allowed a credit for the monies used in redemption. Thereby benefit, and not injury, resulted to the creditors generally.
The taxes paid were not assessed prior to the death of the intestate, and were not preferred claims. A part of them seems to have been assessed on real estate of which *124the administrator had made sale under the decree of the Probate Court. If this is true, they were a burden the purchaser was bound to remove.
There is no principle upon which the rulings of the Court of Probate, in the allowance to the administrator of the debt secured by the mortgage of the real estate, can be sustained.- Whether an administrator, if a necessity exists that he should take possession of the lands, and subject them to the payment of debts,„may not, to render them more available, remove incumbrance upon them, is not the inquiry. An order for a sale of the lands had been obtained ; the sale had been effected, reported to and confirmed by the Court of Probate. Sales of lands, under the decree of the Court of Probate, are essentially judicial. The court,.not the personal representative, is the vendor. His only agency is that of an officer-or special agent, designated by the law for special purposes and clothed with special trusts. To the sale the maxim caveat emptor applies. There is no warranty of title, and if the title proves unsound, the purchaser has no ground of complaint.. The present case is not distinguishable from McNeill v. McNeill, supra, where the precise question we are considering was decided. The payment in full of the mortgage debt was in ease of the purchaser of the lands — it relieved them from an incumbrance, improving the title, converting it into a title superior to that of which the court had decreed a sale, and of which he. had become a purchaser, at the expense of the creditors generally. The agreement or arrangement between the mortgage creditor, the administor and the purchaser, is not of consequence. All combined, could not change the character of the sale and purchase —could not by any private arrangement convert it from a judicial into a private sale. In the making of the sale, as we have said, the administrator was but a special agent or officer. 'His warranty of title, if untrue, or his false representations in regard to it, it may be, would be ground for resisting the confirmation of the sale, but, after confirmation, would not avail to rescind the purchase, or to defeat the payment of the purchase money. Fore v. McKenzie, 58 Ala. 115; Bland v. Bowie, 53 Ala. 152; Cruikshank v. Luttrell, 67 Ala. 318. Nor is the advice of counsel material. If the inquiry was as to the good faith and diligence of the administrator in the per*125formalice of duty in the scope of his authority, it may be that he acted under the advice of counsel would be material. But there is no protection to him when he oversteps the defined boundaries of duty and authority.
When an administrator claims a credit, the validity of which is disputed, the law casts on him the burden of supporting it, whatever may be its nature or character. There was no duty or liability resting on the intestate to pay the premiums, keeping alive Harris’ membership of the Knights of Honor, and the policy of insurance attached to it. The intestate, in his life, may have paid the premiums, but it was not because of a legal liability to make them; nor was it because he was the pledgee or assignee of the policy of insurance. As there was no liability resting on the intestate to pay these premiums, and as he was without interest in the policy of insurance, the administrator exceeded his authority in continuing to make them, and for them he should not have been allowed a credit.
Compensation is not refused a personal representative, unless he has acted in bad faith, or has been guilty of willful default, or gross negligence. This has long-been the settled rule in the Court of Probate and the Court of Chancery. — 1 Brick. Dig. 978, § 907. There was no room, in this case, for the imputation of bad faith to the administrator, or of that degree of negligence which is termed gross. All that can be said is that he may have erred in his judgment as to the condition of the' estate, and the error led him into a line of conduct rendering him liable to creditors. The error has involved him in liability, but it has not resulted in loss to the creditors. The court did not err in the allowance to him of the statutory compensation, except that it should not have been computed on the basis that he had paid out the full amount of the claims, of. the creditors he had preferred ; nor should the claims we have declared are not to be allowed enter into the computation .
An - administrator is entitled to an allowance fox-reasonable counsel fees paid by him, for services rexxdered on .his settlement in the Court of Probate. — 1 Brick. Dig. 979, §§ 924, et seq. But he is not entitled to an allowance for such service rendered in improper, *126unsuccessful contests with creditors or distributees; If by his own conduct he necessitates the contest, and is unsuccessful, he must bear the costs personally. What were the services rendered by the attorney, for whose compensation the Court of Probate made an allowance— whether the allowance was reasonable — whether it comprehended services rendered in the contests with the creditors which we have declared improper, is not disclosed by the evidence found in the record. These inquiries will arise hereafter, and we have stated the principle by which the court must be guided.
The decree of the Court oí Probate is reversed, and remanded for further proceedings in conformity to this opinion.