It is not pretended that the defendant railroad company had ever condemned, paid for or had a grant of land in any form, for its right-of-way at the point, where the timber grew, for the alleged cutting and destruction of which this suit was brought. Its road-bed is held alone by prescriptive right.
The plaintiffs are the children and only heirs at law of John W. Hill, who died intestate in March, 1894, and administration on his estate was granted to Edgar .Smith in May following. He was the undisputed owner of the land at the date of his death. He bought the lot, as appears, in 1888, and he, and those from whom his title came, had been in possession and ownership of the same, for a great number of years. There is no dispute as to his exclusive possession and title, and its sources, nor suggestion of an adverse claim or holding on the part of anybody. He left a widow, Mrs. Emma K. Hill, by whom, as their next friend, the minor parties plaintiff joined in bringing this suit.
In February, 1895, the depredations on the land complained of, as appears, were committed, and on the 11th March, 1895, this action was commenced by the children and heirs at law of said Hill.
1. Assignments of error from 26' to 34, ■ inclusive, *345raise the question, in different forms, as to who had the right of action for the damages claimed, — the administrator of the estate of Hill, or his widow and children.
“The relations of an executor or administrator to the real estate of his testator or intestate, [as we have heretofore said] are regulated by statute in this State, and are well settled and understood. He has no estate or interest in the lands of the deceased whom he represents. They pass, as at common law, to the devisee, or in case of intestacy, to the heir, at - the instant of the death of the ancestor, subject to be intercepted, in either case, by the exercise by the personal' representative, of the power conferred by statute. But, this is but a bare power with which the statute clothes him, to be exercised in the mode and for the purposes expressed in the statute, — to pay debts, or to effect an equitable division between the heirs or devisees.”—Stovall v. Clay, 108 Ala. 105 ; Banks v. Speers, 97 Ala. 560.
2. The statute under which this action was brought, —Code of 1886, § 3296, — confers the right of action thereunder on the owner of the land. Its language is : “Any person who cuts down, [&c., any of the trees mentioned] on land not his own, willfully. and knowingly, without the consent of the owner of the land, must pay to the owner,” &c. The object of the statute, was, not to enrich the owner while alive, — for before its enactment he had, and still has, the common law right of action to recover his damages for such a trespass,— nor was it to increase the assets of his estate in case of his decease; but, as we have held, ‘ ‘The statute is intended for the protection of the freehold from spoliation or destruction ; from that which at common law would be deemed waste. The remedy is given exclusively to the owner of the freehold, and he may pursue it, though he have not the possession.”—Allison v. Little, 93 Ala. 150; Turner Coal Co. v. Glover, 101 Ala. 289; Clifton Iron Co. v. Curry, 108 Ala. 581; Gravlee v. Williams, 112 Ala. 539.
The alleged depredation occurred after the administrator was appointed. It is not shown that he ever took or claimed possession of the land for purposes of administration. If he had done so, he would have had no right to consent to a depredation, nor could he have claimed, at most, for the creditors, or heirs, more than common *346law damages for an unwarranted trespass. He could not, certainly, have maintained this action. The statute limits the right of action to the owner of the legal estate in the lands.
It is not shown that this lot was attached or appurtenant to the homestead of said John W. Hill, at his death. If it had been, his widow, until assignment of dower, was entitled to no more than the possession of his dwelling house, its appurtenances and the plantation connected therewith, if any, and from which, in such case, she would have been entitled to a reasonable amount of wood from the land for fuel, fences and other necessary improvements; and she could not, herself, destroy nor authorize any one else to destroy the timbers on the land, nor do any other permanent injury to the inheritance.—Lowery v. Rowland, 104 Ala. 420. As touching the rights of Mrs. Hill in this respect, in the land in question, we have no information; and from anything appearing so far, she had no right in common with, or without the heirs, to maintain the action.
3. It was sought to he shown, that the administrator reported the estate of his intestate to be insolvent, and on the 7th August, 1895, after the alleged trespass, it was duly declared insolvent; that Emma K. Hill, the widow, filed her petition in the probate court alleging the insolvency of said estate, praying allotment of homestead exemption to her and her minor children; that the court appointed commissioners to allot such exemption, and that they allotted to her and her minor children the lot mentioned in these proceedings, with other property as homestead exemption, and so reported, which report the probate court confirmed. All this, as appears, was after the commission of said alleged trespass.
We are not informed by the abstract, whether thepro- ' ceeding was under section 2544 of the Code, providing for homestead exemption out of other lands of a decedent, for the reason that at his death, he owned no homestead exempt from levy and sale ; or under the act of 1886-87, providing for the setting apart to the widow and minor child or children, all the real and personal property of decedent, for that he died owing personal and real property not exceeding the amount exempted by law to widows and minor children. — Acts, 1886-87, *347ID. 112; Code of 1886, p. 570, n. If under the latter act, if the homestead did not exceed 160 acres of land and $2,000 in value, which does not appear, the estate vested absolutely, whether solvent or insolvent, in the widow or minor child or children.—Smith v. Boutwell, 101 Ala. 375; DeArmond v. Whitaker, 99 Ala. 252. Nor was it shown that the estate of the decedent, set aside as provided by law to the widow, or to her and the minor children, was less'in value than the amount exempted by law, either real or personal, or both, so as to make it vest absolutely in fee in her and them, as provided by the act-of December 13, 1892. — Acts, 1892-93, p. 138. Without this, in either case, the fee did not vest in them absolutely, before a judicial ascertainment and declaration of insolvency. Some estates are ascertained to be insolvent, which do not fall within either of the categories provided for in the statutes above referred to. Smith v. Boutwell, supra; Smally v. Chisenhall, 108 Ala. 683.
' It not appearing, therefore, that the widow and minor children, or either, had the fee in this land, before the declaration of insolvency of said estate, it remained in the heirs. The right of action in the plaintiffs was not changed by the proceeding offered in evidence, and they were the proper parties to institute the action. The evidence sought to be introduced was subject to the objection, interposed to its introduction, and was properly excluded.—Lowery v. Rowland, 104 Ala. 420.
4. ’ The defendant proposed to prove, and was not allowed, on the objection of plaintiffs, that Mrs. Hill and her two children, Dora and Lawrence R., parties plaintiff, conveyed their interest in this lot to Mrs. Lane, on the 9th September, 1895. This was long after the alleged depredation was committed, and after the right of action, if any, had accrued to Dora and Lawrence ; and the conveyance of the- land, so far as appears, was of their interest at that time, which had no effect on their cause of action against defendant for said ti’espass. It remained in them unaffected by said conveyance.—Evans v. S. & W. Railway Co., 90 Ala. 54.
5. The plaintiffs sought to prove by a number of witnesses, — the admission of whose testimony against the objections of defendant is made the basis of several assignments of error, — the number and kind of trees *348that were cut from the land; the grounds of objection being, that it had not been shown that the trees were cut by the defendant. Plaintiffs’ counsel stated that he would, show by other evidence that they were cut by the defendant. The admission of the evidence under this proposition was not improper. The plaintiffs did introduce evidence further . on in the course of the trial, tending to show that the cutting was done by defendant’s agents, under instructions from the defendant.—Mardis v. Shackleford, 4 Ala. 494 ; Crenshaw v. Davenport, 6 Ala. 390 ; Townsend v. Cowles, 31 Ala. 457.
6. Two or more witnesses were asked by the plaintiffs, either, if in order to get the timbers cut, the fence of the plaintiffs, which ran through the land, at the foot of the embankment of the railroad, was torn down, that it was knocked down, or if the fence was torn down when the timbers were cut and while the cutting was going on? The evidence was admitted against the objections of defendant, that it was irrelevant, immaterial and incompetent. It was material for the plaintiffs to show, to make out this case, that the trespass was committed willfully and knowingly. This evidence we apprehend, in connection with all the other evidence introduced for the same purpose, tending to show this fact, was competent to be considered. That there was other evidence tending to show the same fact, cannot be reasonably questioned.
7. There was no error in allowing plaintiffs to ask Hagan, the defendant’s witness, on cross-examination,, if he went to see Mrs. Hill after this suit was brought. She had stated on her cross-examination by defendant, that Hagan had been to her house after the cutting of the trees, and had brought her a contract to sign, which she refused to sign. It was certainly competent for plaintiffs to ask him about a matter the defendant had called out, whether it was material or not. Besides, the two witnesses differed in their statements as to the number of interviews -they had on the subject, and this question was not irrelevant as calling for evidence tending to explain this discrepancy, if it could be made plain, and to test the memory of the witness.
8. The question asked the witness Hagan, which the court refused to allow to be answered, made the basis of assignment of error 14, called for illegal evidence. Mrs. *349Hill, as we have seen, had no right or power to give the witness authority to cut the trees, and the defendant could not shield itself behind such authority, if given. Mrs. Hill denied having given it.
9. Assignments from 15 to 23, inclusive, and 35 and 36 relate to the same matter and may be considered together. The witness, Hagan, under whose orders the trees were cut, was asked, while being examined by defendant, who introduced him, “Did you not consult a lawyer with reference to moving people back fifty feet.?” He answered, “He did consult Capt. McClellan, railroad attorney.” On the cross-examination, the witness was asked when this was, the extent of the order, and what passed between him and the attorney. The evident object of the question as asked by defendant, was to show that the witness was acting in what he did on legal advice, and to get the benefit of his answer as made, that in committing the trespass he was not guilty of any willful disregard of plaintiffs’ rights. The answer tended to show this. The questions propounded to him on the cross, which were objected to and allowed, were intended, and had a tendency to that end, to rebut the effect of the answer to the question in chief. Having brought out this evidence for the purposes intended, the plaintiffs had the right to cross him in the manner they did, to show that the company could not thus shield itself from liability for the alleged trespass.
After the witness had been thus examined in chief and on the cross, and when the plaintiffs came to'offer their rebutting evidence, Capt. McClellan was introduced as a witness by plaintiffs, and testified that the conversation referred to by said Hagan did not occur in 1893, as he stated, but that it occurred in January, 1895, just before the trespass occurred, when Hagan told witness he had orders to move everybody back fifty feet from the ■ railroad track, and McClellan said to him, “that he had better not attempt that; that he could not force people back, and if he did not mind he would get shot; that court houses were put up for the pux-pose of taking property from people, and all that he could do, was to request the people to move back, and if they did not move back, for him to report to the law department.” Defendant moved to exclude this evidence, on the ground that the witness was at that time, as the evidence tended to show, *350the attorney for defendant, 'and was consulted professionally. The objection was not valid. The defendant waited while its witness was being examined touching this matter, and made no objecton to the examination, on 1 accotint of professional confidence. It thus availed itself of all the advantages its witness gave of this interview, and when.it was proposed to contradict him, and show'what the facts were, to avoid the damaging effects of the evidence of the plaintiffs, this objection was sprung by defendant. If ever the defendant had the right to interpose such an objection, it waived it. It could not invite such an investigation, and reap the advantages of a partial and one sided statement from its witness of what occurred, and thereafter object to plaintiffs bringing out the whole conversation. Besides, it does not appear that the witness, Hagan, sought, or had authority to seek, the advice of this attorney for his principal, -or that he was not seeking it for himself and his own protection, and not for that of the defendant.
10. There were several objections made to the declarations and conduct of the agent, Plagan, and the conduct of those who were .acting under his orders, on the ground that the questions propounded called for hearsay and incompetent evidence, not a part of the res gestee; not competent as the declarations of an agent, made in the course of his agency; because it was not shown that the relationship of the agent to defendant was such as that his declarations and conduct would be binding on defendant, or that he had ever been authorized by his principal to thus speak and act, &c. That the trees were cut by the direction and under the orders of Hagan, the evidence was abundant to show. He testified he had orders to clear up 50 feet at this point from the centre of the track, and caused the trees to be cut; that his duties were to clear up and keep the right of way (which was claimed at this point) in order, and he had received his orders from the road-master. Mr. Clark, the superintendent, also testified, that Hagan had orders to clear up the right of way for 50 feet from the centre of the track, but not to go beyond this limit. Here then, was proof of declarations and conduct of an agent while in the performance of his agency, and an independent proof *351of his authority, which rendered the evidence competent.—Postal Telegraph Co. v. Lenoir, 107 Ala. 643.
11. The defendant excepted to charges 3 and 7 given for plaintiffs. Mrs. Hill was not the owner of the'land, and had no right to give the defendant’s agent the privilege of clearing the way and cutting down the timbers, even if she did give such consent, which she denies ; and no one knew, or ought to have known this, better than the defendant, and its agent, Hagan.. Indeed he testified: “I was acquainted with John W. Hill about twelve months before he died, in March, 1894. I knew up to the time he died, he owned the Fish Pond Lot (the one here in question), and that he had children, and that Emma K. Hill was his wife.” Hewas bound, as a matter of law, to know that Mrs. Hill had no right to depredate these lands herself, even, or authorize him to do so, and this is all charge 3 correctly asserts.—Lowery v. Rowland, 104 Ala. 420. In Allison v. Little, 85 Ala. 517,—a similar case to this, — it was said: “It was no defense to this action, that the defendant had cut the trees by the instructions of certain persons, who had no lawful right to confer on him the authority to do so, although he believed they had such authority. He was the victim of his own credulity, and must be the sufferer by his negligence of inquiry, rather than visit the loss on another who is innocent. The fact that he actedin good faith, without the intention to trespass, was immaterial, ” &c. As to charge 7, in addition to what has just been said as to charge 3, it may be added, that the evidence shows, without conflict, that Hagan, the agent of the defendant, cut the trees under orders of the supervisor of the defendant, and without the consent of the plaintiffs, and there was, therefore, no error in giving said charge. '
12. The statute does not require the malicious and evil intent postulated in the 2 charge asked for defendant, and it was properly refused. There is no evidence to show that Mrs. Hill was tenant in common with the plaintiffs, and there was no error in the refusal to give charges 3 and 8. Number 4 was properly not insisted on. Nor was there error in refusing charge 5. It was shown that the trees which were cut by Malone, were trees which Hagan told Harris to cut and Malone cut them for Harris, and they were close to.the fence, on the *352east side. It thus reasonably appears they were on plaintiffs’ land, and cut by the direction or authority of Hagan. The fence was only 24 feet from the middle of the track.
Charge 10 assumes that the defendant had a right of way, of which there is no evidence, and it and Nos. 12, 13 and 14, and those numbered from 21 to 39, inclusive, were properly refused. The number of trees of each kind mentioned in the complaint to have been cut, was averred under a videlicet, and the proofs tended to show that some of each kind were cut and the number of each. No claim was made for any that were cut outside the right of way as claimed.
From what has been heretofore said the vice of charges 9, 11, 16 and 17 will appear.
All that is necessary in an action of this kind, is for the plaintiff to make out his case to the reasonable satis- ' faction of the jury. It is not incumbent on him to make out the averments of the complaint with certainty; or beyond reasonable doubt, as required by charge 20 which • was refused.—Rogers v. Brooks, 105 Ala. 549 ; Lowery v. Rowland, 104 Ala. 421; Roberge v. Burnham, 124 Mass. 277 ; O’Connell v. O’Leary, 145 Mass. 312; 1 Greenl. Ev. § 13, n. p. 25.
It is scarcely necessary to add, that there was no room for the general charge as requested by defendant.
Affirmed.