¶1*275On Petition for a Rehearing.
¶2Since the petition for a rehearing was filed, the parties by their counsel have filed an agreement stating that, since this appeal was taken, appellee Caldwell has departed-this life, and that John J. Caldwell has been appointed his administrator, and that his name be substituted for that • of the deceased.
¶3Appellant insists that the court erred in the original opinion herein in holding that the complaint was for a claim against. Franklin D. Caldwell, as administrator of the estate of Joseph Pitman, instead of an individual claim against said Caldwell,, and that the court erred in fixing the date of the senior Pit-man’s will in 1873, instead of 1843.
¶4The error in relation to the date of the will is in appellant’s counsel, and not in the opinion of the court. That states in figures as plain as can be made, that the will was executed on the 3d day of November, 1843, and probated on the 18th day of November, 1843.
¶5Appellant’s intestate received a life-estate in a certain eighty-acre tract of land, by the said will of her husband. She and her son, Joseph Pitman, united in a conveyance of said land on the 27th day of June, 1856, for the consideration of $2,000; by agreement, $1,200 of it was paid to Joseph, and a note given for $800. The principal of the note was made payable to Joseph at her death, and the interest was made payable annually to her, which she annually received until the year 1863, when one-half of the $800 was arranged between her and Joseph, leaving the other $400 to stand under the same arrangement, and the interest thereon was thereafter received by her so long as she lived, as well as the interest on the $400» arranged with Joseph.
¶6Joseph died some time between 1863 and 1867, date not given; the widow died May 10th, 1878, as claimed by appellant, instead of May 16th, as stated in the opinion of the court; but the difference is not worth noticing. Appellant *276was appointed administrator of the widow, and appellee Franklin D. Caldwell was appointed administrator of the estate of Joseph.
¶7Caldwell, as such administrator, in 1870, charged himself with said $400 in trust, the interest to be paid to the widow so long as she lived, and at her death the principal to be paid to the heirs of Joseph. This suit, was brought to recover that $400, making Joseph’s heirs co-defendants, alleging that they claimed the money, or an interest therein. The right to the principal of this fund, at the death of his mother, was vested in Joseph and his heirs, ever since the year 1856; and this could only arise as a claim against his estate. There was no fraud charged in the transaction, and there was nothing in the complaint to make appellee Caldwell personally liable to pay the $400. Hence, we think the suit was against him as administrator, and not against him in his individual capacity. If it was against him individually, the appellant would be in no better condition, for he certainly would not be liable individually for the payment of the $400.
¶8There was no error in the original opinion of the court. The petition for a rehearing ought to be overruled.
¶9Per Curiam. — It is therefore ordered, upon the foregoing opinion, that John J. Caldwell, as administrator of the estate of Franklin D. Caldwell, be substituted as appellee, instead of Franklin D. Caldwell, and that the petition for a rehearing be and the same is. in all things overruled, at the costs of appellant.