The opinion of the court was delivered by
Wallace, A. A. J.
In 1857 John C. Bethea and his brother, William S. Bethea, were the joint owners of three tracts of land, viz., the Clark land, the Hamilton or Hammer Hays land, and a tract of land lying on Reedy creek. In March, 1857, W. S. Bethea died intestate, leaving as his heirs-at-law his widow, Sarah A., and two minor children — a daughter, Missouri, and a son, W. H. Bethea. The widow administered on the estate of the intestate, and afterwards intermarried with J. C. Fladger. The infant daughter intermarried with John H. Hamer, and died before attaining her majority, leaving one child, Robert M. Hamer. On the 14th of February, 1859, John C. Bethea filed his bill for the partition of the three tracts of land jointly owned by himself and W. S. Bethea. On the 18 th of February, 1859, it was, amongst other things, ordered that a writ of partition should issue. On the 5th of December, 1859, the writ was issued, and on the 6th of January, 1860, the commissioners made their return, setting apart the three tracts to John C. Bethea, at the valuation of $5151, and recommending that John C. should pay one-half of this sum, viz., $2575.50, with interest from the 1st of March, 1860, to the distributees of W. S. Bethea. This return was confirmed and made the decree of the court on the 17th of February, 1860. John C. Bethea subsequently paid this amount to C. J. Fladger and wife, as administrators of the estate of W. S. Bethea. On the 17th of December, 1859, C. J. Fladger and wife filed their bill against J. H. Hamer and wife and W. H. Bethea for the partition of two tracts of land, of which W. S. Bethea was sole owner in his lifetime, viz., the Home place and the Herring place, which they had in possession, and also of the three tracts in which John C. Bethea had a half interest. On the 17th of February, 1860, the day on which the commissioners in the case instituted by John C. Bethea made their return to the writ in that case, a writ of partition was issued to commissioners to divide the Home place and the Herring place. A return to this writ was made on the 20th of February, 1860, recommending that the Home place and the Herring place be sold on sale-day in December, 1860. On the same day the return was made it was confirmed, except as to vesting the share of Missouri, wife of John H. Hamer. This action is brought by the representatives of Missouri Hamer, to recover the amount of her share of the $2575.50 ordered by the court to be paid to the heirs of W. S. Bethea by John C. Bethea, and to set up a lien to the extent of Missouri’s share of that amount upon the land assigned to John C. Bethea. The defendants set up the payment to C. J. Fladger and wife as a discharge of the debt of John C. Bethea to the heirs of W. S. Bethea, and extinguishment of the statutory lien upon the land. The duty of administrators is to collect and sell, under proper proceedings, the personal estate of their intestates. Primarily they have to do only with the personal estate, and, so far as their powers and duties are concerned, that only is personal estate which has that character impressed upon it at the time of the death of the intestate. Now, when under proceedings in partition the three tracts of land were assigned to John C. Bethea by the court, the title which had vested in-the heirs of W. S. Bethea,, at his.death, was extinguished, and their interest was transferred and attached to the money to be paid. Whether there was any conversion of realty into personalty is a question with which the administrators of W. S. Bethea have no concern. This land was-certainly realty at the death of W. S. Bethea, and, as such, they had no authority to administer it. Nor would the order of court, directing the title of the heirs to be extinguished by the payment of money to the heirs, change the relation of the administrators to this part of the estate of their intestate. The question as to a conversion might arise between the personal representatives and the heirs of Missouri Hamer.
It does not appear that there was any insufficiency of personal assets to pay the debts of the intestate. The administrators, therefore, as such, had no power to discharge John C. Bethea from his obligation to pay Missouri Hamer, by receiving the money themselves. It was certainly competent for the court to direct to whom the money should be paid. Did the court direct that this fund be paid to the administrators ? In the case instituted by John C. Bethea the court ordered that the sum to be paid by John C. Bethea should be paid to the heirs of W. S. Bethea. In the case of Fladger and wife, the court orders: 1st. “ That in respect to the portion of the negroes allotted to the said Missouri, and the proceeds of the land hereafter directed to be sold, it be referred to the commissioner íd equity to inquire and report who would be a fit and proper trustee on whom to settle said slaves and proceeds of sales of land to the use of said Missouri.” 2d. “That the lands mentioned in the report of the commissioners be sold.” 3d. “ That the share of the negroes and proceeds of sales of land allotted to Missouri remain in the administrator’s hands until the further order of the court.” It will be seen that the first clause of the order directs the commissioner jn equity to inquire and report a proper trustee to take charge of the negroes allotted to Missouri, and the proceeds of land hereafter directed to be sold. Now, the land immediately thereafter directed to be sold, in the same order, and the only land thereafter directed to be sold, are the Home place and the Herring place. So it was for Missouri’s share of the proceeds of these two tracts that the commissioner was to report a trustee •, the share of Missouri in the other lands of her father having been covered by a previous order in another case. There is no language in the last clause of the order under consideration that •extends its operation beyond the case in which it was made. Construing the whole order together, the first and second clauses designate the property to be settled to the use of Missouri, and •the last clause provides for the custody of that property until the •settlement could be made. No part of the order authorizes the ■administrators to receive from John C. Bethea Missouri’s share ■of the money to be paid by him.
The decree of the Circuit judge dismissing the complaint is reversed, and the cause remanded.
Decree reversed.
Willard, C. J., and Haskell, A. J., concurred.