ward a public highway, and it was possible for some of the shot to pass through the walls of the shop. In the case of State v. Barr, 11 Wash. 481, 48 Am. St. Rep. 890, 39 Pac. 1080, 29 L. R. A. 154, Barr owned a cabin or hut in a secluded spot on the ground of another, in which he and a comrade lived. On leaving the cabin for a hunting trip they locked and barred the doors and windows, and set a spring-gun so that it would discharge the loads into the doorway if one attempted to open the door. One dark and rainy night two travelers were passing the cabin, and, thinking it vacant, attempted to open the door. The gun was discharged, and killed one of them. Barr was indicted for murder, and was convicted of murder in the second degree, and the supreme court affirmed the judgment and sentence.

342

It will be observed from these various decisions that while a man may set spring-guns and man-traps upon his own premises to protect them in the night-time from thieves and burglars, he must see to it that such guns or traps do not inflict injury upon those who go thereon for lawful purposes, and that one has no right to defend his property against mere trespassers by means of such deadly agencies. Liability as to mere trespassers who have no felonious intent depends also upon notice to them of the dangerous agency.

There is another principle of law applicable to this case, which is discussed in these cases cited, and also in others of our own court, which is the right to defend one's property as well as his person against violence and felonies. Mr. Blackstone announced the rule, a long time ago, that where a crime, which is itself punished capitally, is attempted to be committed by force, it may be prevented by force, even to the taking of life. The rule has also been extended to other atrocious felonies, such as burglary and arson, and this is certainly true where such felony is attempted in the night-time: 4 Blackstone's Commentaries, 181, 213. Our court has often announced this same doctrine, first in Oliver v. State, 17 Ala. 587, in which the court said: "The law will justify the taking of life when it is done from necessity to prevent the commission of a felony." This case has often been followed, with some qualifications.

The doctrine is stated or quoted thus by Stone, C. J., in the case of Bostic v. State, 94 Ala. 45, 10 South. 602: "It is said in 4 Blackstone's Commentaries, 213, that 'homicide committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature, and also by the law of England, as it stood so early as the time of Bracton, and as was declared by statutes (Stats. 24 Henry VIII, c. 5). If any person attempts a robbery or murder of another, or attempts to break open a house in the night (which extends also to an attempt to burn it), and be killed in such attempt,

the slayer will be acquitted and discharged.' Greenleaf states the doctrine 343 substantially the same way: 3 Greenleaf on Evidence, sec. 115." This common-law doctrine is also quoted thus in Storey v. State, 71 Ala. 329: "A man may repel by force in defense of his person, habitation or property, against one who manifestly intends, or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary and the like upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is called 'justifiable self-defense': 1 East's Pleas of the Crown, 271. Of course, where one is attacked in his own dwelling-house, he is never required to retreat. 'house is his castle,' and the law permits him to protect its sancity from every unlawful invasion: Wharton on Homicide, sec. 541; Pond v. People, 8 Mich. 150; 1 Russell on Crimes, 544,"

A man's place of business (such as the defendant's store in this case) is pro hac vice his dwelling, and he has the same right to defend it against intrusions, such as burglary, as he has to protect his dwelling: Jones v. State, 76 Ala. 8. Burglary of a storehouse, such as the one attempted to be burglarized in this case, or in which goods, etc., are kept for sale or in deposit, is by statute made a felony punishable as if it were of a dwelling: Code 1907, sec. 6415 (4417). Applying these principles of law, we hold that the owner of such a store is not liable in trespass to a would-be burglar thereof, who is shot by means of a spring-gun by such owner placed in the store for the purpose of shooting persons who might attempt to burglarize it, the gun being discharged by the would-be burglar in attempting to enter.

Affirmed.

Dowdell, C. J., and Simpson and Denson, JJ., concur.

One has a Right to Defend His Habitation from Assault, but it is only when such attack threatens the commission of a felony or great bodily harm to one of the inmates that life may be taken in defending it: See the note to State v. Sumner, 74 Am. St. Rep. 740; Elder v. State, 69 Ark. 648, 86 Am. St. Rep. 220; Thompson v. State, 61 Neb. 210, 87 Am. St. Rep. 453. The law of defense of habitation is not applicable, however, to the protection of property: Utterback v. Commonwealth, 105 Ky. 723, 88 Am. St. Rep. 328. See, also, Taylor v. State, 47 Tex. Cr. Rep. 122, 122 Am. St. Rep. 675; Walker v. Chanslor, 153 Cal. 118, 126 Am. St. Rep. 61.

As to the Criminal Liability of One Who Sets a Spring-gun with a view to protect his property, in the event of injury therefrom to third persons, see State v. Barr, 11 Wash. 481, 48 Am. St. Rep. 890; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159.

MAYER v. KORNEGAY.

[163 Ala. 371, 50 South. 880.] ADMINISTRATOR MAY MAINTAIN

AN EJECTMENT Against Heirs only when necessary for the purpose of administration, and by showing the necessity, and such state of facts as is provided by statute. (p. 80.)

ADMINISTRATOR-Right to Possess, Recover or Sell Land.An administrator has no estate or title in the lands of the decedent. He has only the right, given exclusively by statute, to intercept the rents in certain cases for certain purposes, to recover the land for this purpose, to sell it if necessary to pay debts of the decedent, and in some cases to sell for distribution. (p. 80.)

AN ADMINISTRATOR CANNOT RECOVER LAND from the Heirs without showing the necessity, or the contingency, or the happening of the event for which the statute authorizes him to maintain such action. (p. 81.)

ESTATE OF DECEDENT-Debts as Charge on Land.-The debts of a decedent are not necessarily a charge upon his land. (p. 81.)

ESTATE OF DECEDENT.-The Debts Contracted by an Administrator are never a charge upon the lands of the estate. (p. 81.) ESTATE OF DECEDENT.-The Debts Charged upon the Lands of the estate of a decedent must be such as were incurred by him. (p. 81.)

ESTATE OF DECEDENT.-Debts, to be a Charge on the Land of the estate of a decedent, must be in excess of the value of the personal property. (p. 81.)

ADMINISTRATOR-Ejectment Against Heirs.-The Burden of Proof is upon an administrator, in his action of ejectment against heirs, to show the necessity of recovering the land, or to bring himself within the provisions of the statute. (p. 81.)

PROBATE COURT-Conclusiveness of Judgment.-The judg ment of a probate court that debts are not a charge upon land of a decedent, and that it should not be sold to pay them, is conclusive if not appealed from. (p. 81.)

The statement of facts referred to in the opinion is as follows: "That Morris Mayer duly qualified as the administrator of Allen Kornegay, and letters of administration were duly issued to him out of the probate court of Marengo county, Alabama, on the thirtieth day of June, 1896. That Allen Kornegay died seised and possessed of, and was the owner of, the lands sued for in the complaint. That said Morris Mayer has made no settlement of his administration, and that said Allen Kornegay's estate owes debts. That the defendants are heirs at law of said Allen Kornegay. That the following named persons are the heirs at law, and the only heirs at law, of the said Allen Kornegay, and that they are joint owners or tenants in common of the lands described in the complaint, and own interests therein as follows: Thornton Kornegay, over twenty-one years of age, and owns an undivided one-sixth interest in said land; Polly Kornegay, over twenty-one years, and owns one-sixth undivided interest; Julia Kornegay, over

twenty-one, and owns one-sixth undivided interest; Eveline Kornegay, of full age, but of unsound mind and owns onesixth undivided interest; Eliza Allen, over twenty-one, and owns one-sixth undivided interest; Eliza Kornegay, over twenty-one, and owns one-twelfth undivided interest; Cheney Kornegay, over twenty-one, and owns one-twelfth undivided interest. That it has been regularly adjudicated on a petition by plaintiff, to which defendants were parties, by the probate court of Marengo county, Alabama, that said lands could not be subjected to the payment of debts of the estate of Allen Kornegay, and that no new debts have arisen since the adjudication. That none of said heirs of Allen Kornegay have requested or desired any partition of said lands, or any sale of them for division among the heirs. That said estate of Allen Kornegay is ripe for a final settlement, except that there are certain alleged debts due by it, being the same debts as to which the probate court has regularly held in a proper proceeding that said lands could not be sold to pay them. That said Morris Mayer has no right, title, or interest in said lands, except as administrator, and no right to recover the same, except for the purposes of administration, if any such there be."

Taylor & Hearing and C. K. Abraham, for the appellant. J. M. Miller and de Graffenreid & Evins, for the appellee.

374 MAYFIELD, J. This is a statutory action in the nature of an action of ejectment, brought by appellant, as administrator, against appellees, the heirs of the intestate, to recover the lands of such intestate. The case was tried by the court without a jury on an agreed statement of facts, which the reporter will set out in the report of this case. The court rendered judgment for the heirs, and against the personal representative. From that judgment the administrator appeals.

An administrator may, in certain cases, as provided by statute, maintain ejectment against the heirs or strangers to recover the lands of his intestate. However, he can only maintain such action when necessary for the purpose of administration. He can only recover against the heirs by showing the necessity, and such state of facts as is provided by statute. He has no estate in or title to the lands. He only has the right and power, 375 given exclusively by statute, to intercept the rents in certain cases for certain purposes, and to recover the lands for this purpose, and to sell the same if necessary to pay debts of decedent, or he may, in certain cases, sell for distribution among the heirs. He cannot recover the lands from the heirs, who are the legal owners, whatever may be his rights as against strangers, without showing the neces sity, or the contingency or the happening of the event for

which the statute authorizes him to maintain such action. Without this necessity or contingency provided for, he is a trespasser as against the heirs in attempting to assume to control the lands.

Debts of the decedent are not necessarily a charge upon the lands. The debts may be barred by the statute of limitations, or the lands may be exempt from such debts. The debts contracted by the administrator are never a charge upon the lands. They must be debts incurred by the decedent, and they must be in excess of the value of the personal property. The lands cannot be applied to the debts of the decedent so long as there is personal property sufficient to pay the debts. The burden of proof is upon the administrator to show the Lecessity, or to bring himself within the conditions or provisions of the statute. While it is shown by the statement of facts that "the estate of decedent owes debts," it is not shown that the debts are such as to be a charge upon the lands. They may have been incurred by the administrator, or may be barred by the statute of limitations. It is not shown that they are a charge upon the lands.

It also appears that it had been already judicially determined by the probate court of the proper county that these debts were not a charge upon the lands; that the lands could not be sold for the purpose of paying 376 the debts. The probate court, for this purpose, is one of competent and full jurisdiction, and its judgments or decrees on this subject, if not appealed from, are final and conclusive as to this question. All the questions involved in this case are discussed and decided in the cases of Lee's Admr. v. Downey, 68 Ala. 98, Banks v. Speers, 103 Ala. 436, 16 South. 25, and Owens v. Childs, 58 Ala. 113. On these authorities, and what is said above, the judgment must be affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.

EJECTMENT BY AN EXECUTOR OR ADMINISTRATOR.

L. Nature of the Title of Executor or Administrator to Lands of Decedent, 81.

II. Rule as to Right of Executor or Administrator to Maintain Ejecment, 81.

L Nature of the Title of Executor or Administrator to Lands of Decedent.

An administrator has no estate or title to the lands. He has only the right and power given exclusively by statute to intercept the rents in certain cases for certain purposes, and to receive the lands for such purposes and to sell the same if necessary to pay the debts of the decedent, or he may, in certain cases, sell for distribution among the heirs: Mayer v. Kornegay, 163 Ala. 371, ante, p. 79, 50 South. 880, The general American statutory rule in this respect is that an executor or administrator is entitled to the possession and control of the land -of the decedent until the debts are paid and administration is closed: Am. St. Rep., Vol. 136-6