author: HYDE, Judge.

text:
    Joe N. MOSELEY and Billie Routh Moseley, and Charles H. Howard (Plaintiffs) Respondents, v. William W. SEARCY, Jr., et al., Defendants, William A. Seibel and Evelyn Seibel (Intervenors) Appellants.
    No. 49125.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Rehearing Denied Jan. 14, 1963.

      William A. Seibel, Jefferson City, for appellants.
    Charles H. Howard, David R. Goller, Jefferson City, for plaintiffs-respondents.
    Thomas P. Rose, Jefferson City, for defendant-respondent Jefferson City.
   HYDE, Judge.

Action to declare title in plaintiffs to real estate which is part of a tract designated as a park on a plat of an addition to Jefferson City. Because of the large number of lot owners in this addition, suit was brought as a class action and lot owners in each block were made defendants to represent the class. Appellants (hereinafter called intervenors), lot owners who questioned the selection of the class representatives made by plaintiffs, were permitted to intervene. The court found for plaintiffs and declared them owners in fee simple. Intervenors have appealed.

Defendant Searcy, on August 2, 1926, recorded a plat of Sunset Place Addition to Jefferson City, on land then owned by him, after approval by ordinance of the City. The plat stated Searcy did “dedicate to the public use all streets, alleys and avenues, boulevards and drives shown in and on said plat.” There were two long, narrow strips of land designated on the plat as parks; one north of the northernmost street designated as “Cliff Park” above the Missouri River and the other designated as “Hays Park” between two winding streets called “Allen Avenue” and “Cole Drive” in south central part of the addition. Hays Park is the land in controversy herein. As designated on the plat, Hays Park was about 1200 feet long, generally from 100 to 200 feet wide, but still narrower at the north end. Intervenors own lots on the north side of Allen Avenue separated from the Hays Park tract only by that street. The area around Plays Park was not developed as soon as other parts of the addition on higher ground. There was testimony (inter-venors’ witness who was a member of the City Park Board) that “ ‘Hays Park’ was a couple of gulleys and weed patches, with a nice little ditch at each end.” Several times when complaints were made, the Park Board had weeds on the tract cut and once burned some thorn trees. At one time, the Lions Club had some swings and teeter totters on the tract for about a year and the Park Board during that period had some picnic tables on higher ground west of the park area. Members of the City Park Board decided it would be impossible to do anything with the limited area designated on the plat. In cooperation with the West End Improvement Association, in 1949, they attempted to get owners of lots adjoining the Hays Park tract to donate lots to make an area large enough for development as a city park but this was not successful.

Before 1957, the streets in the Hays Park area were not improved and there were no sewer facilities. When a building contractor began to develop some lots near the west, end of the park, it was decided to build a sanitary sewer. In 1957, the City had to take a position about the park, either to claim ownership and make provision out of general revenue for part of the cost of sewer and street improvements or to deny any rights in the park tract. The City Attorney advised because there was no specific mention of parks in the dedication clause of the plat, the original owner Searcy, who filed the plat, should be shown as the owner in all proceedings. (He was never located but was notified by publication against him, his wife, unknown heirs, grantees, consorts and successors.) A sewer district was established by city ordinance, sewers constructed and tax bills issued to the contractor against Searcy as owner of the park tract (also naming the City) and were foreclosed by suit in 1958. The City’s answer therein disclaimed any interest in the land. Plaintiffs claim under the sheriff’s deed on sale under special execution to enforce the judgment on the tax bills. In 1959, the City filed a suit against Searcy to condemn the western part of the Hays Park tract, which had not been included in the sewer district, to use for street purposes and obtained a decree of condemnation therefor. Street improvements were built on this condemned land and improvements of other streets in the area were made which did not conform to the street designations on the plat. Plaintiffs also gave the City a street construction easement (the streets were built by tax bills against adjoining property) and a surface water drainage easement through the part of the park area conveyed by the sheriff’s deed; the City, with its own funds, constructed a concrete lined drainage ditch through the middle of the park area. No assessment for taxes was ever made against the Hays Park tract until after the sheriff’s sale in 1958, the first assessment being made in January 1959.

Intervenors’ theory (as indicated by their answer and oral argument) is that Hays Park is a public park owned by the City, dedicated, accepted and remaining as such. It is difficult to follow their brief because it does not comply with our rules, failing in “points relied on” to “show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous,” as required by Rule 83.05(a) (3), V.A.M.R. Instead In-tervenors’ points relied on set out “only abstract statements of law without showing how they are related to any action or ruling of the Court” (in some instances conclusions of fact likewise not relating them to Court action) which subsection (e) of Rule 83.05 specifically states is not a compliance with the rule. However, since it appears from the argument in intervenors’ brief that they claim the court erred in entering a decree declaring title in plaintiffs in fee simple, we will consider that contention on the merits.

No doubt it is true, even though parks were not mentioned in the dedication statement, that Searcy could not file a plat showing a park, sell lots shown on the plat and then claim the park land himself to use for some other purpose; nor could anyone claiming under him do so especially if he had knowledge of representations made by .Searcy concerning the park in selling lots. See Hetzler v. Millard, 348 Mo. 198, 153 S.W.2d 355, where land so designated was considered to be a private park for the benefit of lot owners. See also Larkin v. Kieselmann, Mo.Sup., 259 S.W.2d 785, 788, and authorities cited. However, in this case, no lot owner claimed this land to be a private park and intervenors definitely reject that view. Intervenors’ contention is that it is a public park and they base their claim, that plaintiffs did not get title, on the rights of the public to have a park there. “Where there is not a complete statutory dedication, the sale of lots by reference to the plat constitutes a common-law dedication. * * * ‘In the interpretation of maps and plats all doubts as to the intention of the owner should be resolved most strongly against him; but the plat should be considered as a whole, and the maker’s real intention sought therefrom.’ * * * Implied or common-law dedication operates upon the principle of an estoppel.” Byam v. Kansas City Public Service Co., 328 Mo. 813, 41 S.W.2d 945, 949. Actually, “a common-law dedication is a continuous, irrevocable offer to dedicate, which the dedicator cannot retract.” Downend v. Kansas City, 156 Mo. 60, 68, 56 S.W. 902, 904, 51 L.R.A. 170. Certainly at least there was a common law dedication of the Hays Park tract.

Nevertheless, a dedication must be accepted and the court’s decree is based on the theory that it was never accepted. Our conclusion is that the evidence supports that view. In 16 Am.Jur. 379, Dedication, § 31, it is said: “While it is true that the owner, by platting land and the sale and conveyance of lots with reference to the plat, is, as a general rule, estopped to deny the dedication of the parts of the tract marked on the plat as streets, alleys, parks, or other pub-lie places, as against his grantees, or may-even be estopped to revoke or deny such dedication as against the public, it does not necessarily follow that the grant thereby becomes vested in, or the dedication accepted by, the municipality. Ownership and control by the municipality may, and in a number of cases would, entail burdens and expense. It seems obvious that a municipality cannot have undesirable properties thrust upon it and be burdened with the various duties, expenses, and liabilities incident to ownership without some action, direct or implied, on its part showing acceptance, any more than a private individual can have such burdens thrust upon him without acceptance on his part.” There of course can be circumstances under which acceptance can be shown by long continued public use. See Minium v. Solel, Mo.Sup., 183 S.W. 1037; McQuillin, Municipal Corporations, 3rd Ed., §§ 33.47, 33.50; The Law of Real Property, Tiffany, § 1107.

In Downend v. Kansas City, 156 Mo. 60, 56 S.W. 902, this court said: “The sole purpose of requiring plats to be submitted to and approved by the common council of a city was to secure systematic prolongations of its streets, and thus conform to the plan upon which the city was laid out. * * * Such an approval is a certificate that the plat conforms to the law, but it is in no sense an acceptance of the street as a public highway; nor does it cast upon the city the duty of keeping it in repair.” Section 445.030 RSMo V.A.M.S., prohibits placing of record any plat of land, within the corporate limits of any city, town or village, until approved by ordinance. Thus the 1926 ordinance of Jefferson City authorized the recording of the plat but did not constitute an acceptance by it of Hays Park as a public park. See McQuillin, Municipal Corporations, 3rd Ed., § 33.48, and cases cited. The evidence in this case shows that the Hays Park tract was not suitable for a public park and that for 30 years after recording the plat the City did nothing to improve it or use it as such; and the evidence is insufficient to show that it was really used as such by the public or was in condition to be so used. It also appears that most of the area near the park tract was vacant land for many years and that when building activity began, requiring street and sewer improvements, the City rejected any status of dedication to it of Hays Park in the most positive possible ways. “The question of acceptance is one of mixed law and fact. It is one of law insofar as it involves questions as to the nature of the acceptance, the source from which it must come, and the acts and things which may be indicative of it. It is one of fact insofar as it involves inquiries as to whether or not the requisite acts and things have been done so that legal requirements have been met.” McQuillin, Municipal Corporations, 3rd Ed., § 33.59. Our conclusion is that the evidence sufficiently shows, for the court to base its decision on that view, that the land involved was never suitable for a park, was never accepted by the City as a park, and was never used by the public as a park. The one short-time attempt by the Lions Club to locate playground equipment in the area does not show any substantial use as a park in view of the Park Board’s decision against developing it and the lack of interest of lot owners in enlarging the area for establishment of a public park. Therefore, we hold the court properly took the view that there never was acceptance of the tract by the City as a park or for any public purpose.

However, rejection by the City would not necessarily mean that title reverted to the dedicator, free and clear of all claims of lot purchasers. They could have rights against him in the nature of an easement to keep open the space shown on the map as Hays Park; and they were not parties to the suit to foreclose the tax bills either individually or as a class. See 17A Am.Jur. 650, Easements, § 40; 28 C.J.S. Easements § 44, p. 708. See also Annotation, conveyance of lot with reference to map or plat, etc., 7 A.L.R.2d 607, 650. “The general rule is that lands dedicated to public use do not revert to the dedicator because of misuse or nonuse unless use for the dedicated purpose has become impossible or so highly improbable as to be practically impossible.” McQuillin, Municipal Corporations, 3rd Ed., § 33.80; see also Dillon, Municipal Corporations, 5th Ed., § 1106; The Law of Real Property, Tiffany, § 1113; Goode v. City of St. Louis, 113 Mo. 257, 276, 20 S.W. 1048; Ginter v. City of Webster Groves, Mo.Sup., 349 S.W.2d 895, 900. Discussion of requirements of the impossibility rule will be found in Gaskins v. Williams, 235 Mo. 563, 139 S.W. 117, and Campbell v. Kansas, 102 Mo. 326, 13 S.W. 897, 10 L.R.A. 593. There also may be a reverter by legal abandonment. McQuillin, Municipal Corporations, 3rd Ed., § 33.80; Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363; American Steel & Wire Co. of New Jersey v. City of St. Louis, 354 Mo. 692, 190 S.W.2d 919, 923. Therefore, the lot owners’ rights in the Hays Park area as a public park, which is the basis of intervenors’ claim, could be lost by reverter under the impossibility rule.

When the changes from the plat were proposed, intervenors could have sought equitable relief to compel a specific execution of the trust requiring the City to operate a public park (see McQuillin, § 33.80) but the facts about its unsuitability and non-use would seem not to indicate much hope for success of such an effort at any time. Moreover, at the present time, after so many years of nonuse and refusal to develop the City might well have a defense of es-toppel to such a suit by reason of interve-nors standing by and seeing the changes made in the area by sewer, drainage and street improvements inconsistent with park use, including condemnation of part of the park tract for use as a street turnaround circle and in building streets in the park area different in design and location from the street designations on the plat, all of which might be shown to have increased the value of intervenors’ property. See Goode v. City of St. Louis, supra, 113 Mo. l. c. 278, 20 S.W. 1048. However, intervenors brought no such suit and have asked no such affirmative relief against the City in their pleadings herein but instead are opposing plaintiffs’ right to have title declared in them. Nevertheless, their claim is that this area is a public park; that it must be maintained and kept as such; and that their rights are to so use it with the public.

The situation shown by the evidence is that the western part of the park about 300 feet long was taken by the City and a street with a turnaround circle constructed on it, with the pavement of a through street across its eastern base; that this through street, Allen Avenue, was continued and paved along the north side of the park tract without following the designation of streets on the plat; that most of the remaining park area south and east of Allen Avenue was in gulleys and now has an open concrete lined drainage ditch through the middle of it; that the remaining area is too small and too narrow to be suitable for a public park ; that the City has always refused to devefop it as a park and has rejected its dedication as such; and that the changes made by the City in developing the area at least have made any use as a public park so highly improbable as to be practically impossible. In the Gaskins case, supra (235 Mo. l. c. 574, 139 S.W. l. c. 121), this court pointed out there are cases which “refer to situations where there has been an abandonment of the specified use, such abandonment being held to be equivalent to an impossibility.” In the Gaskins case, in which land was dedicated for a court house site in a town which did not become the county seat, we said: “As a practical proposition, the execution of this trust has become impossible, and, under the authorities above cited, the land reverts to the heirs of the original donors.” We also noted therein (l. c. 573, 139 S.W. l. c. 121) the ruling in the Campbell case, supra (102 Mo. 326, 13 S.W. 897, 10 L.R.A. 593), where land donated for a graveyard was subsequently discontinued as a graveyard, by ordinance, the remains of those buried there removed and the place converted into a park, that “such abandonment being ordered by lawful authority, is equivalent to impossibility of use.” On that basis, it was held that the land involved in the Campbell case reverted to the dedicators. On this same basis (abandonment equivalent to impossibility of use of this area as a public park) under all the circumstances of this case, including alteration and diminution of the area, we hold that the court properly considered Searcy to be the owner of the land by reverter so that his interest was foreclosed and transferred to plaintiffs by the suit on the sewer tax bills. Therefore, intervenors’ claim must be and is denied.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOLMAN, Commissioner.

license: Public Domain

text:
    Helen Walsh DOUGLASS, Executrix of the Estate of Jean Hall Douglass, Deceased, and Helen Walsh Douglass, an Individual, Plaintiff (Appellant-Respondent), v. Myrtle H. DOUGLASS and Cyrus Douglass, Defendants (Appellants-Respondents).
    No. 49196.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Rehearing Denied Jan. 14, 1963.
    Richard R. Russell, Joseph J. Floward, Kirkwood, for defendants-appellants-respondents.

      F. G. Armstrong, St. Louis, for plaintiff-appellant-respondent.
   HOLMAN, Commissioner.

Jean Hall Douglass died on March 26, 1959, as the result of cancer from which he had suffered for several years. On February 19, 1959, said decedent and his wife, Helen, had executed a deed of gift whereby they conveyed a house and lot they owned as tenants by the entireties to his parents, defendants herein. The deed was promptly recorded but was not delivered to the grantees until shortly after Jean’s death. This suit was filed by Helen, as an individual and. as executrix of Jean’s estate, in an effort to obtain a decree canceling said deed (or for certain alternative relief) on the ground that it was executed by her as the result of a unilateral mistake of fact on her part. Defendants filed an answer and a counterclaim in which they sought a judgment in the sum of $10,500 (and interest), the alleged balance due on a promissory note payable to them and signed by Jean and Helen. A trial resulted in a judgment for defendants on plaintiff’s claim, and also a judgment for defendants on their counterclaim in the sum of $10,500 and interest from December 9, 1959, the date defendants had filed a demand on said note against the estate of Jean. The court found that defendants were not entitled to recover interest on said note for the period from its date until the date of filing the aforementioned demand because they had been guilty of laches in failing to demand payment of said interest. All parties have appealed, but the sole contention of defendants upon their appeal is the alleged error of the court in failing to enter judgment for the entire amount of interest that had accrued on the note.

Jean and Helen were married in 1942 when each was 38 years of age. He was an automobile salesman and she was employed as a buyer for a large department store in St. Louis. She continued to work until they adopted a son in 1946. At about that time Jean obtained a Studebaker franchise and commenced business for himself under the name of J. H. Douglass, Inc. He continued to operate this business until about 1950 when he received an injury which caused him to “retire,” and he stayed at home for the following three years. In 1953 he went back to work as an automobile salesman for one Percy Tucker with whom he had been associated in prior years. Apparently Tucker had owned half of the stock in the Douglass corporation, and said corporation had owned two business buildings and, upon the liquidation of the corporation, Jean and Helen owned one half of that property and Tucker the remaining one half. In January 1954 Jean and Helen purchased the half interest of Tucker in the commercial buildings and in order to pay for same they sold the residence they then occupied and also borrowed $11,500 from defendants and gave a note therefor. Four payments of $250 each were made on the principal of that note during the period from February to June 1954, and no other payments were thereafter made.

While Jean was operating the Studebaker agency his father worked for him. When the agency closed defendants were more than 70 years of age and thereafter Jean made contributions to his parents’ living expenses. For example, during 1954, Jean gave his father $75 a month with which to pay apartment rent. In May 1947, Jean obtained a $10,000 life insurance policy in which he made his parents the beneficiaries and delivered it to his mother who retained possession of it until after her son’s death.

In February 1955 Jean and Helen purchased the Antler Drive property, taking title as tenants by the entireties. Two months later the defendants moved into that residence and have occupied it as a home since that time. Later in that year it was discovered that Jean was suffering from cancer and an operation was performed after which he spent some six months in convalescence before returning to his work as an automobile saleman. In October 1958 it developed that Jean was suffering from a recurrence of cancer and another operation was performed. After being discharged from the hospital he returned to his home and remained there until his death on March 26, 1959.

In September 1958 Jean and Helen purchased a $42,000 residence on Berkshire in Richmond Heights. Helen and her mother (who resided with them) advanced $20,000 for the down payment on that property and the balance was borrowed from a bank.

Jean’s will of March 1956 purported to devise a life estate in the Antler Drive property to defendants. On February 10, 1959, Jean executed a new will in which he devised all of his estate to Helen. On February 19, 1959, Jean and Helen executed three deeds. One of them conveyed the Antler Drive property to defendants. Helen testified that she suggested that the property be conveyed to defendants because “I wanted them to have the pride of ownership.” Another deed conveyed the commercial property to a third party who re-conveyed it to them, “one half each as tenants in common.” The other deed conveyed their residence on Berkshire to a third party who reconveyed it to Helen Walsh Douglass.

Helen testified that after Jean’s operation in October 1958, when they all knew that he was going to die, she had a conversation with the defendants in which she said there was “enough for all of us and the note was protected; * * * that the policy backed the note; * * * they didn’t say anything about the insurance policy but seemed to know that the insurance policy covered it [the note].” However, on cross-examination plaintiff admitted that in her deposition she had stated that she had never discussed the note with the defendants prior to Jean’s death and she didn’t remember any conversation about any insurance policy at the time she talked with the defendants after Jean’s operation. Helen further testified that at the time she delivered the deed to defendants, about April 1, 1959, Mr. Douglass said, “ T guess you want that note,’ and I said, ‘Well, that would be the usual procedure unless you want to tear it up.’ * * ⅛ He said it was in the safe deposit box and! he would get it,” but he did not do so.

On cross-examination plaintiff stated that she did not remember Mr. Douglass saying" that the note should be entered as a claim-against the estate for estate tax purposes, although she remembered that something was said about “tax purposes.” She also testified that Jean had life insurance policies in the amount of $40,000 in which she was named as the beneficiary.

Cyrus Douglass testified that he had a conversation with plaintiff shortly after his son’s death in regard to her paying the-note and the manner in which she was to-pay it, and at that time suggested that because of inheritance taxes it would be better to have the claim allowed against the estate-rather than for her to pay it as an individual ; that this was the only conversation he-had with her relative to the note.

Myrtle Douglass testified that she had' never at any time discussed any business with plaintiff; that on one occasion, in January 1959, when she visited Jean, he stated, in the presence of plaintiff, that “we; were to live in the Antler property our-lifetime, and as long as he was changing his will he was deeding us the property.”'

As a basis for its judgment in favor of' defendants the trial court made the following findings: “There was no agreement by-Cyrus and Myrtle H. Douglass to accept payment of said note in anything other-than cash and said defendants did not make a renunciation of the note. There was no-fraud on the part of said defendants and' they did or said nothing which would deceive or mislead Jean Hall Douglass or-Helen W. Douglass. Neither defendant-knew of any misunderstanding by, or mistake on the part of, either Jean Hall Douglass or Helen W. Douglass. The real' estate mentioned in the amended petition.at 8515 Antler Drive, St. Louis'County, was. a gift by Jean Hall Douglass and Helen W.. Douglass to said defendants and there was no connection between the gift of this prop•erty to defendants and the note. The gift ■of this property to defendants was a part ■of a property settlement between Jean Hall Douglass and Helen W. Douglass on February 19, 1959. The General American Life Insurance Policy No. 1104465 for Ten Thousand Dollars ($10,000) on the life of Jean Hall Douglass in which defendants were named as the beneficiaries thereof, was a gift to defendants when the insurance ■policy was delivered by Jean Hall Douglass to Myrtle Douglass in May of 1947.” We agree with the quoted findings of fact and adopt them as our findings to the extent .applicable herein.

Upon this appeal Helen does not claim that the evidence would support a finding that defendants agreed to apply the pro■ceeds of the insurance policy toward the payment of the note. It is her position that in some manner (which she is unable to explain) the idea developed in her mind that if she and Jean deeded the Antler Drive ■property to defendants the defendants would apply the proceeds to be obtained from the life insurance policy toward the payment of the balance due on the note, and if she had not possessed that mistaken idea she would not have signed the deed. Because of that unilateral mistake of fact she contends that she is entitled to a decree rescinding or canceling that deed. She offers to agree that defend.ants may have a life estate in the property •or, as alternative relief, that defendants may (in effect) elect to accept a decree whereby they would retain the property and apply the insurance proceeds on the note in accordance with her idea as to the arrangement.

As authority for her contention plaintiff ■cites 12 C.J.S. Cancellation of Instruments § 27 b (2), p. 978, wherein it is said that “Where a contract in writing is executed by only one of the parties, under a mistake as to a fact which is of the essence of the contract, the mistake constitutes a ground for a court of equity to rescind and cancel the apparent contract as written, and to place the parties in statu quo, * * *. Sometimes, however, before granting this relief the court affords the party not mistaken the option to accept an alteration in the agreement — or, more accurately, a contract in the terms understood by the other party — instead of an annulment of the writing.”

We have examined the cases cited in the notes to the quoted text and find none where relief has been granted upon the basis of a unilateral mistake so vague and indefinite in its origin as the one plaintiff says caused her to sign the deed in question. It should be noted that this mistake was not in the provisions of the instrument being executed and did not directly concern the property conveyed. The mistake related to other transactions which plaintiff, in her mental processes, sought to connect with the conveyance. In most of the cases where relief has been granted it has been shown that the other party, either intentionally or innocently, participated in causing the mistake. That situation did not exist here. It is stated in Vol. 3, Corbin on Contracts, § 608, p. 677, that it “must be borne in mind, however, that the circumstances accompanying the mistake must always be considered, just as they were considered by the former courts of Chancery. It has never been asserted, and it is not being asserted here, that a party ever makes out a sufficient case for relief, either affirmative or defensive, by merely proving that he was caused to execute a deed or to make a promise by the fact that he had a mistaken thought * * We think that is the situation here. Plaintiff simply had the “thought” that if the property was given to defendants they “should” and perhaps “would” reciprocate by applying the insurance proceeds upon the note. That is not sufficient to warrant the relief sought.

There is another reason why plaintiff is not entitled to prevail. A limitation usually placed upon the rule which affords relief from a unilateral mistake is “that the mistake should not result solely from the want of such care and diligence as are exercised by persons of reasonable prudence under the same circumstances.” 12 C.J.S. Cancellation of Instruments, supra, § 27 b, (3), p. 980. We think plaintiff was careless and failed to exercise reasonable prudence in this matter. She knew that her husband would likely die in a short time and yet she signed the deed which gave defendants property worth $17,000 without any understanding concerning a debt of more than $10,000 which she knew she and her husband owed defendants. If she “thought” the conveyance should cancel the note, or that it should cause defendants to credit the proceeds of the insurance policy on the note, any exercise of reasonable care would have required that she have some sort of agreement with defendants to that effect. A simple written agreement would have been preferable, but, in any event, plaintiff could, at least, have had a verbal understanding as to a disposition of the note. It would appear that plaintiff was so careless in protecting her own interests that she is in no position to seek the relief of a court of equity in the situation presented. See Anno. “Unilateral Mistake — Rescission,” 59 A.L.R. 809, 818.

Plaintiff has also cited the case of Saline County v. Thorp, 337 Mo. 1140, 88 S.W.2d 183, hut that case involves such an entirely different factual situation than the case before us that we do not consider it applicable.

For approximately four years defendants occupied the house in question while it belonged to Jean and Helen and did not pay any rent. It has been agreed that the reasonable rental value of the property during that period was $125 per month. As an alternative contention plaintiff says that she (individually and as executrix) is entitled to recover the reasonable rental value of the property for that period and to have that amount offset against the amount due on the note. No authorities are cited in support of that contention. We think it is apparent that Jean and Helen did not intend that defendants pay any rent. That would appear to be tacitly conceded. We observe that they gave defendants a rental allowance of $75 per month for a year before they moved into this property. During that time they owed the note in question but they did not request that the money given defendants to pay the rent be credited as payments on the note. Under the circumstances shown we do not see any basis for allowing plaintiff an offset for the amount of the reasonable rental value of the property. We have concluded that the trial court properly ruled that plaintiff was not entitled to recover on her claim and that defendants were entitled to have judgment upon the note.

The note heretofore mentioned provided that it bear “interest from January 13, 1954 [its date] at the rate of 6% per annum.” Defendants, upon their appeal, contend that the trial court erred in holding that they were guilty of laches in failing to demand payment of interest and therefore could recover interest only from the date they filed a demand in the probate court upon the note. Plaintiff has not filed any brief in which she contends that the ruling of the trial court in this respect was correct. In that connection we think it is significant that plaintiff did not plead the defense of laches until after judgment was entered. She was permitted to amend her reply by pleading that defense after judgment had been entered and while the motions for new trial were pending. We have not been able to find any case where the defense of laches has been pleaded in an action between the payee and the maker of a note. That defense ordinarily appears in cases where the holder of a note is seeking to recover from an endorser.

Section 401.060 (all statutory references are to RSMo 1959, V.A.M.S.) provides that the “maker of a negotiable instrument, by making it, engages that he will pay it according to its tenor * * Also, it is provided in § 401.070 that “Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; * * Those provisions undoubtedly apply to interest as well as principal. The cases hold that in an action against the maker of a note, no demand for payment is necessary. Hackett v. Dennison, 223 Mo.App. 1213, 19 S.W.2d 541; Lambert v. Gutman, Mo.App., 171 S.W.2d 735. The note in question became due one year after its date. Therefore, the principal came due on the same date as the interest for the first year. We can see no logical reason why there would be a duty to demand the interest when it became due, when there was unquestionably no duty to demand the principal. In accordance with the provisions of the foregoing statutes, we rule that there was no duty upon defendants, in the situation here presented, to demand the payment of interest from the makers of the note sued on. Moreover, laches is not mere delay but delay that works a disadvantage to another. Kizior v. City of St. Joseph, Mo.Sup., 329 S.W.2d 605. In the case at bar there is no evidence to indicate that Jean and Helen were in any manner prejudiced by the failure of defendants to demand the payment of interest from time to time. We accordingly rule that defendants were entitled to a judgment on their counterclaim for all of the interest that had accrued since the date of the note.

The judgment for defendants upon plaintiff’s claim is affirmed, and the judgment on the counterclaim is reversed and the cause remanded with directions to the trial court to enter a judgment thereon for defendants in accordance with the views herein expressed.

COIL and HOUSER, CC, concur.

PER CURIAM.

The foregoing opinion by HOLMAN, C, is adopted as the opinion of the court.

All concur.


author: HOLLINGSWORTH, Judge.

text:
    Mary CARR, Appellant, v. MONTGOMERY WARD & COMPANY, Inc., Respondent.
    No. 49285.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.

      Rose & Brown, V. C. Rose, Herbert S-Brown, Trenton, for appellant.
    Somerville & Cleaveland, Ronald L. Som-erville, Chillicothe, for respondent.
   HOLLINGSWORTH, Judge.

Plaintiff, a former employee of defendant, brought this action to recover actual' damages in the sum of $5,000 and exemplary damages in the sum of $25,000, on grounds that, following her discharge as such employee, defendant, upon written, request made by plaintiff, unlawfully and maliciously refused to issue to her the so-called “service letter” required by § 290.140 RSMo 1959, V.A.M.S. Attached to and made a part of her petition was-plaintiff’s Exhibit “A”, being the letter pleaded by plaintiff as the written request made by her for said “service letter”. Defendant filed its duly verified motion to dismiss the petition, averring that Exhibit “A” attached to plaintiff’s petition was the sole written request received by defendant from plaintiff and that said letter “was-not, * * * as a matter of law, a request for a ‘service letter’ within the meaning of § 290.140 * * * and plaintiff has therefore failed, as a matter of law, to comply with and bring herself within the terms of said section * * The prayer of the motion was that the petition be dismissed with prejudice at the cost of plaintiff, which motion, upon final hearing, was sustained as prayed. Plaintiff has-appealed from the judgment accordingly entered. This court has jurisdiction because the amount in dispute, exclusive of costs, exceeds $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.-040 RSMo 1959, V.A.M.S.

Section 290.140, in material part, reads :
“Whenever any employee of any corporation doing business in this state shall be discharged or voluntarily quit the service of such corporation, it shall be the duty of the superintendent or manager of said corporation, upon the written request of such employee to him, if such employee shall have been in the service of said corporation for a period of at least ninety days, to issue to such employee a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee has quit such service; and if any such superintendent or manager shall fail or refuse to issue such letter to such employee when so requested by such employee, such superintendent or manager shall be deemed guilty of a misdemeanor, * *

The petition alleges, in substance as stated in Exhibit “A”, the term of employment by defendant at its store in the city of Trenton, Grundy County, Missouri, the fact and date of her discharge by defendant on July 28, 1961, that Exhibit “A” was mailed on August 14, 1961, and by defendant received in Chicago, Illinois, in due course of mail; and that defendant failed and refused to respond. The letter is exceedingly long and much of its content is immaterial only as it may be of aid in determining whether it constituted a written request for a letter setting forth the nature and character of service rendered to defendant, the duration thereof and truly stating for what cause, if any, she quit defendant’s service. For that reason, we quote it verbatim:

“Montgomery Ward President Chicago, Illinois
“Dear Sir:
“I just want to tell you how deeply hurt and humiliated I am by Ward’s Trenton Store. I have been married 24 yrs. I started working the 2nd yr. of my marriage. I have worked part time off and on for Wards ever since the store opened, I worked 2 y,rs. steady as Service Clerk. Then I quit and moved to Detroit. We were gone 18 months and came back.
“Once again I started working steady for Wards in the Service Dept, and intended for it to be 25 yrs., which would be an honor to be proud of. My baby girl was 18 months old when I started working and she will be 10 yrs. old next month. So I have worked steady now for 8 yrs. and 5 months plus the 2 yrs. I worked just before. (Total of 10 yrs. plus)
“I have passed all the inspections of the Auditors twice a year plus all the inspections of the Service Mgrs. at K.C.
“I was dismissed Fri. July 28th, 1961 by the Asst. Mgr. Lionel Dean, without a reason. I asked him why and he said he didn’t know. But the very next day his cousin was installed in my office. I am not the only one that has been dismissed. I hear that he is getting rid of the ones he don’t like and putting in his own personal friends or relatives.
“My husband can’t work and we have two children to support. I am the only one in the family who works and pays bills and buys groceries.
“What hurts so terribly bad is that I have devoted my whole working life to Wards. Then they dismissed me without a reason or a notice, and that means I can’t have any recommendations from Wards to get another job.
“I am desperately in need of a job. I have been .all over town trying to find work. There were two open jobs that I applied for, I did not get either one. The man at the employment office told me why I did not get a job. He said that each one had called Wards and our new manager, Mr. Barnes would not tell them anything except that he could not recommend me. So naturally they thought that I had committed a crime or something and would not employ me.
“But I want you to know I have not done one single thing that was wrong and I have a clear conscience with God. I am a saved and sanctified Christian. I am sure that you are a Christian too. I can tell by the wonderful article you wrote in one of our ‘Foreward’ Magazines.
“All that I am asking of you is to see that my name is cleared on the Chicago Books. I still like Wards as a company and have always considered it part of my life.
“Could you look up some of the reports over the years sent in by the auditors and please send me a letter of recommendation so that I might obtain work. If I go to another city or town would it ever be possible for me to work in a M.W. Store. You see I would still have to have references.
“If Mr. Barnes did not like my work why didn’t he take my office job away and put me on the sales floor. He did not have to fire me after all these years.
“Please do something to help me.
“Will be waiting for an answer soon. “Mrs. Mary Carr 1524 Carnes St.
Trenton, Missouri”

Plaintiff’s sole contention on appeal is that the petition, to which Exhibit “A” was attached and made a part, did allege facts sufficient to constitute a claim upon which she was entitled to relief, in that Exhibit “A” did constitute a sufficient request for a service letter as required of defendant under the provisions of § 290.140.

In the absence of contract or contrary statutory provision, no employee has a right to continued employment, however long may have been his service to his employer. Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 124; ACF Industries, Inc. v. Industrial Commission of Missouri et al., Mo., 320 S.W.2d 484, 491 [5]. Neither is an employer under any duty to give his employee a letter of recommendation or “service letter” in the absence of statute, contractual provision, or custom or usage imposing such a duty. In the absence of such a statute, contractual provision, custom or usage, the fact that an employee’s reputation is adversely affected by his discharge affords him no basis for recovery of damages sustained thereby. 56 C.J.S. Master and Servant § 45, pp. 439-440.

Section 290.140, supra, modifies the common law only to the extent of requiring the employer upon written request of the employee to issue to him a letter setting forth (1) the nature and character of service rendered, (2) the duration thereof and (3) truly stating for what cause, if any, he quit his service. The provisions of the statute became a part of her contract of employment. Cheek v. Prudential Ins. Co. of America, Mo., 192 S.W. 387, 393 [7]. But to make a case against his employer, the employee must plead and prove that such .a request was made. If he fails so to do, his case fails. Seiller v. Kiel, Mo.App., 149 S.W.2d 463, 465. In the instant case, plaintiff alleged that she had duly made such a request, but the trial court, for the reasons hereinabove stated, held that the letter sent by her to the defendant did not constitute a written request such as would require defendant to issue to her a letter embodying the facts required under the statute.

Plaintiff places strong reliance upon the case of Brinks, Inc., v. Hoyt, U.S.C.A. 8th Cir., 1950, 179 F.2d 355. In that case, the written request made by the employee, in material part, stated, loe. cit. 360: “When you discharged me about the 6th of February, 1948, you informed me, when I asked for a letter of recommendation, that it was not the policy of the company to give such a letter. * * * I would certainly be much indebted to you if you would give me such a letter showing the time I worked for you, the kind of work I did, if satisfactory and why I was fired.” The Court of Appeals said of the sufficiency of that request, loc. cit. 360: “Plaintiff may have chosen the wrong word as descriptive of the letter but he definitely states that he wishes the letter to show ‘the time I worked for you, the kind of work I did, if satisfactory, and why I was fired.’ The trial court found that this written request was a sufficient compliance with the statute. In addition to this written request there were numerous oral communications between the plaintiff and the manager relative to supplying plaintiff with a service letter. It may be that the plaintiff’s conception of the letter was not as accurate as it might have been and he may have been guilty of a misnomer in describing it, but there can be no doubt that defendant’s manager knew what the plaintiff was entitled to and the mere fact that he may have asked for more than he was entitled to would not be sufficient to render ineffectual his request for what he was entitled to.”

We cannot construe the request made of the employer in that case to be, even in small degree, comparable to the request in our case. There, the employee, when discharged, orally asked for a letter of recommendation. But in his written request, he asked, in lay language, for substantially the identical information required of the employer under § 290.140.

In construing plaintiff’s Exhibit “A”, it is our duty, in the absence of ambiguity or ascertainable mistake, to give to the words and phrases used therein their plain, ordinary and usual meaning. Worthington Drainage Dist. v. Elm Township of Putnam Co., 339 Mo. 270, 96 S.W.2d 374, 375 [1, 2]. Repeated reading of the exhibit in its entirety convinces us that plaintiff sought exactly what, and only what, she really desired defendant to send her: “a letter of recommendation so that I might obtain work.”

A service letter, as contemplated by the statute, may or may not constitute a recommendation. But that is not its basic purpose. “ * * * [Ujnder our statute if a discharged employee demands a service letter, then ‘truth must out’, and the employee can accept the consequences.” Van Sickle v. Katz Drug Co., 235 Mo.App. 952, 151 S.W.2d 489, 494 [4], Nowhere in Exhibit “A” do we find any direct or in-ferable request for a letter truly stating (1) the nature and character of the service rendered by plaintiff, (2) the duration thereof and (3) the cause, if any, for her discharge. Under the authorities above cited she has no cause of action under the statute until she has made, in substance, the written request therein required.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    CAPITAL CITY MOTORS, INC., a corporation, Respondent, v. THOMAS W. GARLAND, INC., a corporation, Appellant.
    No. 49256.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Motion for Rehearing or for Transfer to Court En Bane Denied Jan. 14, 1963.

      Rassieur, Long & Yawitz, Elliott P. Koenig, Allen A. Yoder, St. Louis, for appellant.
    Buckley & Campbell, R. Forder Buckley, Robert Lee Campbell, St. Louis, for respondent.
   HOUSER, Commissioner.

This is a suit on a promissory note, tried to the court without a jury. The court found for plaintiff, the holder in due course, and rendered judgment against the maker for $21,912. Defendant, the maker, appealed.

On November 23, 1951 Thomas W. Garland, Inc. executed and delivered to Gran-vil E. Bates a negotiable promissory note for $25,000, payable in annual installments of $1,000 each, -beginning November 23, 1952, and a like sum on the 23rd day of November each year thereafter through November 23, 1976, together with 4% per annum interest “on the full amount of principal sum remaining unpaid on each installment payment date.” The note contained the following acceleration clause: “In the event of default in any annual installment or interest payment due hereunder, the Lender may at his option declare the entire amount of principal and interest then remaining unpaid hereunder immediately due and payable.”

The maker paid the annual installments of principal and interest called for by the note on November 23 in each of the years 1952-1958, both inclusive. On May 25, 1959 plaintiff Capital City Motors, Inc., became the holder in due course of which notice was given the maker on June 10, 1959. The balance due on the principal at this time was $18,000. On August 10, 1959 the holder wrote the maker a letter offering to sell the note to the maker at a discount, for $15,000 cash. The holder did not pay anything on the note prior to or on November 23, 1959. Nothing was paid on November 24, 1959. On the morning of November 25, 1959 the holder’s vice-president telephoned the maker’s president, reminding him that the installment payable November 23, 1959 was past due, but not demanding payment thereof. In this conversation the parties discussed the possibilities of the maker paying the note for a lump sum less than the sum of the installment then due plus installments to come due in the future. The maker’s president stated that his board of directors had not yet determined to pay off the note as offered on August 10; that the board was meeting on that day; that after the board met he would advise the holder’s vice-president the board’s determination to accept or reject the offer. The holder’s vice-president did not declare the entire balance of the principal and interest called for by the note due and payable during this conversation. The holder’s vice-president was advised at 5:05 p. m. November 25, 1959 that the board had declined to accept the offer and that a check covering the installment of principal and interest due November 23, 1959 would be put in the United States mail that evening. On the next day, November 26, 1959, Thanksgiving Day, the holder’s board of directors discussed defendant’s failure to make the installment payment on its due date but did not declare the entire balance of the note immediately due and payable. The board gave its vice-president authority to discuss the matter of nonpayment and acceleration of maturity of the note with the attorney for the corporation, and authority to agree on any course of action the attorney should recommend. No attempt was made by the vice-president or any member of the board of directors of the holder to contact the attorney until about noontime on Friday, November 27, 1959. On the morning- of Friday, November 27, 1959 the holder received in the mail a check drawn by the maker, dated November 25, 1959, payable to the holder in the amount of $1,720 drawn upon Manufacturers Bank and Trust Company of St. Louis. The maker had placed this in the mails on November 25, 1959, addressed to the holder at its principal place of business in the City of St. Louis. At all times mentioned there was sufficient money on deposit in the bank to the credit of the maker to cover the amount of the check. Upon receipt of the check it was placed on the desk of the holder’s vice-president, in accordance with customary office procedure, for approval for retention and deposit. The customary office procedure was to separate incoming checks in two groups, those approved for deposit, and those not approved for deposit. Those approved were given to the secretary for typing a deposit-endorsement thereon and for the preparation of a deposit slip. After the check was received by the vice-president it was either handed by the vice-president to the secretary or she took it from his desk, and typed an endorsement on the reverse side, which read, “For deposit and to use of Capital City Motors, Inc.” The customary procedure was to prepare a deposit ticket on which the check would appear as an item for deposit, at the time the endorsement was typed on the reverse side of the check, but the secretary does not remember whether that was done in this instance. Thereafter the vice-president pulled the check from the deposit, called the corporation’s attorney, and they mutually agreed to return the check to the maker and declare the entire balance of the note due and payable. Until this event, the holder had not exercised its option to declare the entire balance due and payable. The typewritten endorsement on the reverse side of the check was erased by one of the holder’s employees. Thereafter the holder’s attorney prepared a letter, which was approved by the vice-president and mailed to the maker, which letter, dated November 30, 1959, recited the fact that a payment of $1,000 principal and $720 interest was due and payable November 23; that it was not paid; that a check dated November 25 for $1,720 was mailed November 25, “two days after the due date”; that this check “was not received until November 27, 1959, four days after the date on which the payment was required to be made by the terms of the note.” The acceleration option was quoted, and the maker was advised that the holder “has, by reason of your default, elected to declare the entire amount of principal and interest immediately due and payable, and demand is hereby made upon you for full payment immediately,” and that if payment was not made at once suit would be filed. The check was returned. Nothing further occurring, suit was filed on the note on December 22, 1959, and on January 21, 1960 the maker tendered and paid into the registry of the court the sum of $1,720 for the benefit and to the .use of the holder. On November 21, 1960 the maker tendered to the holder the annual installment payment of principal and interest due; the holder refused the tender, and by stipulation and agreement the payment (in the sum of $1,-680.45) was deposited into the registry of the court for the benefit and to the use of the holder.

The maker’s failure to pay the $1,720 on or before November 23 did not automatically and ipso facto mature the entire debt, Wolfley v. Wooten, 220 Mo.App. 668, 293 S.W. 73, because the acceleration clause was not self-executing. Putthoff v. Walker, 213 Mo.App. 228, 248 S.W. 619; Anno. — Acceleration of Note or Mortgage as Automatic or Optional, 159 A.L.R. 1077, III a., p. 1091. An acceleration clause is solely for the benefit of the holder of the note, and may be waived by him. Tower Grove Bank & Trust Co. v. Duing, 346 Mo. 896, 144 S.W.2d 69, 71, 152 A.L.R. 1325. It merely confers upon the holder an option to treat the debt as due. Putthoff v. Walker, supra. If the creditor decides to exercise the option he is required, in order to effectuate an acceleration, to perform some, affirmative, overt act evidencing his intention to take advantage of the accelerating provision. Wolfley v. Wooten, supra, 293 S.W., l. c. 76; 5 A.L.R.2d 970; 10 C.J.S. Bills and Notes § 251 d., p. 750. If he fails to take some affirmative action the full amount will not become due merely upon the happening of the default. 159 A.L.R. 1091; Berkowitz v. Kasparewicz, 121 Conn. 140, 183 A. 693, 104 A.L.R. 1326; Brady v. Selberg, 154 Or. 477, 60 P.2d 1104. Such affirmative action must be taken before the debtor makes a tender of the amount actually due, Coman v. Peters, 52 Wash. 574, 100 P. 1002, and until the holder claims his right to accelerate, the maker may terminate the right by a proper: tender of performance, 10 C.J.S. Bills and Notes § 251 d., p. 750; National Debenture Corp. v. Smith, Tex.Civ.App., 132 S.W.2d 429; Lee v. O’Quinn, 184 Ga. 44, 190 S.E. 564, and thereby cure the default in payment. (Just as a tender to the trustee of the amount of the interest due will cure the default and prevent a sale under foreclosure. Potter v. Schaffer, 209 Mo. 586, 108 S.W. 60; Philips v. Bailey, 82 Mo. 639; Whelan v. Reilly, 61 Mo. 565.) In other words, the holder of a promissory note which is in default and which contains an acceleration clause may waive or lose his option to treat the entire debt as due, by failure to exercise his option before the debtor makes a proper tender of the amount overdue. 10 C.J.S. Bills and Notes § 251 f., p. 752; Heckert v. Hilscher, 61 Wash. 269, 112 P. 365; Matzger v. Page, 62 Wash. 170, 113 P. 254; Stalder v. Riverside Groves & Water Co., 167 Cal. 560, 140 P. 252. And as stated in Lee v. O’Quinn, supra, 190 S.E., l. c. 566: “Where the creditor attempts to exercise such option by giving written notice thereof to the debtor by mail, and before receiving such notice the debtor tenders the amount in default, such notice will not be effective to accelerate the maturity of the other installments.” In the instant case the holder, Capital City Motors, Inc., took no positive, affirmative action evidencing its election to take advantage of the accelerating provision until after it had received the check of the maker, Thomas W. Garland, Inc., for $1,720. This tender of the overdue payment, which occurred before the exercise by the holder of its option to declare the whole debt due, cut off the holder’s right to exercise the option.

The holder makes no point of the fact that the tender was in the form of a check rather than currency, and we are deciding this case on the assumption that the medium of tender was sufficient. The only remaining question is whether the tender was valid insofar as amount is concerned.

Respondent says the tender of $1,720 on November 27 was insufficient because it did not include an additional four days’ interest (from November 23-27) on the unpaid principal in the sum of either $8.00 or $12.00, depending on whether computation is made at 4% or 6%’; that to be effective a tender must include all sums due at the time of tender, and the fact that the difference is small is immaterial. At the time of the tender, however, respondent did not owe four days’ interest on $17,000, as respondent seems to argue, because respondent had not at that time exercised its option and the interest on the unpaid principal balance, under the agreement contained in the note, was not due until the next installment payment date. The amount actually due at the time of the tender was $1000 principal, plus interest on $1000 for four days (approximately 44⅜ figured at 4%, which would be the applicable rate in this case. See Borders v. Barber, 81 Mo. 636; Macon County v. Rodgers, 84 Mo. 66), plus $720 interest.

Respondent's contention is without merit. The law does not concern itself with trifles. Matzger v. Page, supra, 113 P., 1. c. 255; 86 C.J.S. Tender § 8 a., p. 563. Furthermore, respondent waived the 44‡. An objection to a tender, to be available to a creditor, must be timely made, and the grounds of the objection specified, otherwise it is waived. 86 C.J.S. Tender § 12, p. 565. Respondent claims that the reason assigned in its letter of rejection of the check (“by reason of your said default”) was broad enough to cover both tardiness and failure to tender the extra interest due by November 27, but we do not agree. The letter read as a whole plainly must be construed as an objection to the tender solely on the ground that the $1,720 was not paid on time. Where a tender is refused by a creditor on the ground that it was late, the tenderee waives the objection to the insufficiency of the amount. “An objection that a tender does not include interest is waived where * * * the tender is refused solely on another ground * * 86 C.J.S. Tender § 12 b., p. 565. Not having objected to the amount of the tender at the time the check was received in the mail, on the ground that it failed to include interest on $1,000 for four days, respondent waived the objection. -“Who does not speak when he should may not when he would.” Thompson v. St. Charles County, 227 Mo. 220, 234, 126 S.W. 1044, 1048.

The judgment is reversed and the cause remanded with directions to enter judgment for defendant.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


text:
    STATE of Missouri Upon the Information of John M. DALTON, Attorney General of Missouri, At the Relation of Robert C. WALTERS, Stella Stevens and Edward Gilbert, Relators-Appellants, v. Alfred I. HARRIS, Respondent.
    No. 49208.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Motion for Rehearing or to Transfer to Court En Bane Denied Jan. 14, 1963.
    F. Wm. McCalpin, St. Louis, for rela-tors-appellants.
    Merle L. Silverstein, Rosenblum & Gold-enhersh, St. Louis, for respondent.
   HOUSER, Commissioner.

At the relation of three residents of the twenty-second ward of the City of St. Louis the State of Missouri filed an information in quo warranto in the Circuit Court of the County of St. Louis praying for an order of forfeiture of office and ouster of Alfred I. Harris as alderman of that ward, on the ground that after election he moved from his residence in the city ward to St. Louis County in violation of a provision of the city charter that an alderman shall forfeit his office if at any time he not be a resident of the ward from which elected. Following issuance of the writ respondent filed a motion to dismiss the information and dissolve the writ, alleging that the information does not disclose sufficient facts upon which relief can be granted by the circuit court; that the circuit court does not have jurisdiction over the subject matter; that the charter provision that the board of aldermen shall be the judge of the qualifications of its members vests in the board the exclusive jurisdiction to determine their qualifications and disqualifications. The motion to dismiss was sustained. Relators have appealed from the ensuing judgment dismissing and discharging respondent of and from the writ of ouster.

We have jurisdiction because this appeal involves the construction of the Constitution of Missouri, 1945, Article V, § 4, V.A.M.S., relating to the jurisdiction of circuit courts to issue and determine original remedial writs. Article V, § 3, Constitution of Missouri, 1945, V.A.M.S.

The pertinent constitutional, statutory and charter provisions follow:

Article V, § 4, Constitution of Missouri, 1945, V.A.M.S.:

“The supreme court, courts of appeals and circuit courts shall have a general superintending control over all inferior courts and tribunals in their jurisdictions, and may issue and determine original remedial writs.”

Section 531.010, RSMo 1959, V.A.M.S., authorizes the attorney general to exhibit to the circuit court an information in the nature of a quo warranto “[i]n case any person shall usurp, intrude into or unlawfully hold or execute any office * *

Supreme Court Rule 98.01, V.A.M.R.:
“In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the Attorney General of the state, * * * shall exhibit to the circuit court, * * * an information in the nature of a quo war-ranto, at the relation of any person desiring to prosecute the same; * * *.”

Article IV, § 7 of the Charter of the City of St. Louis (1914):

“Said Board shall be the judge of the qualifications of its members, except of its president; * *

Article IV, § 2 of the Charter of the City of St. Louis (1914) :

“[I]f any Alderman ⅜ * * shall at any time not be a resident of such ward, he shall thereby forfeit his office.”

Appellant contends that the court erred in sustaining the motion to dismiss; that the charter provision, properly construed, does not abate the jurisdiction of the circuit court and that the circuit court had jurisdiction to issue and determine the writ of quo warranto under Article V, § 4, supra.

Respondent takes the position that the charter provision establishes an exclusive procedure for determining the qualifications of an alderman, thereby ousting the circuit court of jurisdiction; that Article V, § 4 does not enlarge the jurisdiction of the circuit court over the subject matter of quo warranto and that the subject matter of this proceeding was outside that jurisdiction under the common law existing when the constitution of 1945 was adopted. Respondent urges that the plain, ordinary meaning of the words used in Article IV, § 7, is that of exclusiveness; that such a finding is required upon consideration of the historical background of the section, prior decided cases, and the doctrine of separation of powers.

The principal issue is whether the city charter vests in the board of aldermen the exclusive right to determine the qualifications of its members. It does not do so unless it takes away from the courts their jurisdiction to adjudicate such matters. Prior to the adoption of the 1945 constitution circuit courts had jurisdiction to issue and determine writs in the nature of quo warranto, flowing from their general common law jurisdiction. Extraordinary Remedies Under Missouri’s New Code and Constitution, 18 K.C.Law Review 173, 174. Article V, § 4, supra, for the first time provided an express constitutional basis for the issuance of original remedial writs by circuit courts. Just as this provision confers jurisdiction on the Supreme Court, State ex inf. Taylor v. Cumpton, 362 Mo. 199, 240 S.W.2d 877 (1951); State on inf. Dalton v. Dearing, 364 Mo. 475, 263 S.W.2d 381 (1954); State on inf. Dalton v. Gamble, 365 Mo. 215, 280 S.W.2d 656 (1955), so also it confers jurisdiction on the circuit courts to issue the writ of quo warranto as an original remedial writ.

We pass over the question of the power of the people to limit such a constitutional grant of power, and confine ourselves to the construction of the language of Article IV, § 7. While there is a diversity of opinion on . the question, the rule to which we adhere and which obtains in many if not most other jurisdictions is that notwithstanding statutory or charter provisions that the municipal legislative body shall be the judge (or “shall judge”) of the qualifications of its members, the jurisdiction remains in the courts to pass upon the qualifications of. the members of the body, and the power, vested in the municipal body is concurrent, and cumulative, unless the grant excludes the jurisdiction of the courts by express provision or necessary implication. The jurisdiction of the courts is said to remain unless it “clearly appears,” McQuillin, Municipal Corporations, 3rd ed., Volume 3, § 12.93, p. 348, or unless it appears “with unequivocal certainty,” Dillon, Municipal Corporations, 5th ed., Vol. I, § 379, that the legislature (in this case the people voting on the charter) - intended to take it away. State ex rel. Turner v. Fitzgerald, (1869) 44 Mo. 425; Bouldin v. Davis, 197 N.C. 731, 150 S.E. 507; 62 C.J.S. Municipal Corporations § 390, c. (2) (b), p. 739; Anno. 107 A.L.R. 205, IV, b. l, l. c. 220, citing cases from twelve states. We construe Article IV, § 7 to grant the power to the board of aldermen without in terms denying it to the courts. The language of Article IV, § 7 does not employ the words “exclusive,” /‘sole,” “final,” or other words of that import.- Neither expressly nor by necessary implication does it express the purpose to take from the courts their constitutional and statutory jurisdiction to inquire into the right of a person to hold and exercise the office of alderman, or make the jurisdiction of the board exclusive and its action final and conclusive. It creates a concurrent and cumulative power under which the board may judge of the qualification of its members in the first instance, thus enabling it to organize, proceed to transact business and function expeditiously, but it does not close the door to the courts which, on behalf of the people, may inquire by writ of quo warranto into the right of any person holding and exercising the office of alderman. Nothing in the nature of the office of alderman proscribes such inquiry and it takes express and unequivocal language, or language from which the implication is inescapable, to divest the courts of a jurisdiction always possessed.

State ex rel. Turner v. Fitzgerald, supra, was a quo warranto proceeding to test the right of an incumbent councilman of the City of St. Joseph, a charter city, to hold his office. The charter provided that the board of councilmen “shall judge of the qualifications, elections and returns of the members thereof.” The board passed on the qualifications of respondent as a member of the body and seated him. Relator, a contestant for the office, filed an information which was demurred to on the ground of want of jurisdiction in the circuit court. Respondent maintained that under the charter the judgment of the board was final and conclusive. The circuit court sustained the demurrer. On appeal this Court reversed and remanded, holding that in the absence of express terms so declaring the charter provision did not make the judgment of the board final and conclusive, and that the circuit court had jurisdiction to determine the right to the office. In answering the question whether the action of the board was final and conclusive the Court said, 44 Mo., l. c. 427: “Doubtless the Legislature might have made it so. It has not, however, by any express terms, seen fit so to declare. If it thus intended, that intention is to be ascertained from a construction of the act in question in connection with other acts. The statute (Gen.Stat.1865, ch. 157) confers upon the Circuit' Court jurisdiction, on proper complaint, to try and give judgment of ouster in cases where ‘any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise’ whatever. The language of the enactment is broad and comprehensive. In its terms it embraces the case at bar. Does the charter of the city of St. Joseph exempt the respondent from the operation of the comprehensive words of this statute? Not by its express terms, certainly; nor yet by the necessary force of the language employed. There is no necessary antagonism between the two acts. The council judges of the election and qualification of its members in the first instance. It may organize and proceed to the transaction of business, and its acts will be legal and obligatory so far as the legality of the composition of the board is involved. But that does not exclude the idea of an investigation by the common-law courts of the right of any particular member to the office which the council board may have adjudged him qualified to fill. There is nothing in the nature of the office of councilman furnishing an argument in support of the proposition that the officer is shielded from any inquiry into his right to the office by the courts of law.” This Court quoted with approval from Ex parte Heath, (N.Y.) 3 Hill. 42, l. c. 51, 52, which indicated that the power bestowed was merely a concurrent power; that a statute using the word “solely” or declaring a decision of an inferior court conclusive or final might by a liberal construction imply an intent to take away the power, but that such words have often been held not to divest the superior court of its supervisory power, and to give a statute such an effect “the legislature must say in so many words .that they intended to take the power away.”

While the implied holding of the Turner case that quo warranto (rather than the election contest laws) is an available remedy in a contest between a relator seeking the office and the respondent incumbent, has been overruled, see State ex rel. Ponath v. Hamilton, Mo.Sup., 240 S.W. 445, 449, the principles announced and the reasoning advanced in the opinion have not been repudiated. We approve its rationale as fully applicable and pertinent in resolving, the issue here presented.

Since we find no ambiguity in Article IV, § 7, supra, we need not resort to the prior history of the charter provision, or the proceedings of the Charter Board of Freeholders which considered, drafted and adopted the 1914 charter, for aid and assistance in its construction.

Respondent advances the argument that the circuit court is without jurisdiction because as a member of the board of aider-men of the City of St. Louis respondent is a member of the legislative branch of the government, as such removed from the investigative jurisdiction of the judiciary on analogy to theiholdings of federal courts\ that under Art. I, § 5 of the Constitution of the United States each house of Congress is the sole and exclusive judge of the qualifications of its own members, and that all judicial bodies are precluded from asserting any jurisdiction over matters involving the qualifications of representatives and senators. The argument is that the board of aldermen of the City of St. Louis constitutes a coordinate branch of government, the same as the General Assembly, and “should be accorded a similar status although it rules only a City”; that under the doctrine of separation of powers the legislative branch is removed from “judicial interference or supervision.” . Authority is said to be found in State ex rel. Vogel v. Bersch, 83 Mo.App. 657, in which the St. Louis Court of Appeals said that the charter of the City of St. Louis “makes of the municipal assembly a miniature co-ordinate branch of the state government, independent of the judiciary” as to “all matters committed to its judgment and discretion by the charter * * * ”; that the municipal assembly is not subordinate to the judiciary; that it and the General Assembly are coordinate branches of government.

The analogy is incomplete and the language of the Bersch case is too broad. The City of St. Louis is not a coordinate branch of the state government. The subordinate position of the City of St. Louis in the governmental hierarchy was manifested by the constitution of 1875, which (Art. IX, § 23) required that the charter of the city and its amendments be “in harmony with and subject to the Constitution and laws of Missouri,” and which (Art. IX, § 25) gave the General Assembly “the same power over the city and county of St. Louis, that it ha[d] over other cities and counties of this State” and is confirmed by the decisions of this court, which has referred to its board of aldermen as a subordinate tribunal, State ex rel. Davisson v. Bolte, 151 Mo. 362, 52 S.W. 262, 265; has required its municipal ordinances to be in harmony with the constitution and legislative enactments, Ex parte Tarling, Mo.Sup., 241 S.W. 929, and has invalidated its municipal measures inconsistent with the general laws of the state. State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713, 719; State ex rel. Knese v. Kinsey, 314 Mo. 80, 282 S.W. 437; City of St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 998. Its charter has the force and effect of an act of the Legislature, Kirkwood v. City of St. Louis, Mo. Sup., 351 S.W.2d 781 and cases cited, l. c. 784; Giers Improvement Corp. v. Investment Service, Inc., 361 Mo. 504, 235 S.W.2d 355, 359, no more and no less. Its board of aldermen does not stand on an equality, with the General Assembly as an essential part of the legislative department of this state. It possesses no inherent legislative power, “and is not, in virtue of its own right, free from judicial control, but is so only when it is exercising legislative power conferred by law upon it, and then only in respect of the exercise of that power.” State ex rel. Abel v. Gates, (en banc) 190 Mo. 540, 89 S.W. 881, 884. As it existed on February 27, 1945, the date of the adoption of the constitution, the City of St. Louis was a creature or political subdivision of the state, State ex rel. Spencer v. Anderson, Mo.App., 101 S.W.2d 530, 534, possessing only such delegated powers as were conferred upon it by express or implied provisions of its charter and the general laws. Petition of City of St. Louis v. Sommers, 364 Mo. 700, 266 S.W.2d 753. By the adoption on February 27, 1945 of Constitution of Missouri, 1945, Art. VI, § 31, which was intended to preserve the status quo, the City of St. Louis was recognized as then existing as a city and its continuance as a city for city purposes was provided for with its then charter (the 1914 charter), subject to changes and amendments provided by the constitution or by law, “and with the powers, organization, rights and privileges permitted by this constitution or by law.” Any new or revised charter is required to be “in harmony with the constitution and laws of the state.” Constitution of Missouri, 1945, Art. VI, § 32(a). Both constitutions vest the legislative power in the General Assembly of the State of Missouri, Constitution of Missouri, 1875, Art. IV, § 1; Constitution of Missouri, 1945, Art. III, § 1. Neither constitution vests any part of the legislative power in the board of aldermen of the City of St. Louis. A member of the board of aldermen of the City of St. Louis is not immune from judicial inquiry into his qualifications by reason of his official position. Article IV, § 7 does not preclude the circuit court from investigating and determining the qualifications of a member of the board of aldermen of the City of St. Louis by writ of quo warranto, and it follows that the order and judgment of the circuit court must be reversed and the cause remanded for a hearing on the merits. It is so ordered.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . Whether the people of the City of St. Louis have the power to adopt a charter provision conferring exclusive authority upon the board of aldermen to finally determine the right to membership on the board and excluding the courts from their constitutional power to issue the original remedial writ of quo warranto and their statutory power and power under Supreme Court rule to inquire into the right to hold any office is a question which, upon this record, we need not decide in view of our construction of the charter provision, Article IV, § 7.

      . Article V, § 4, Constitution of Missouri, 1945, V.A.M.S.

      . RSMo 1959, § 531.010, V.A.M.S.; Sup. Ct. Rule 98.01.

      . Now § 531.010, RSMo 1959, Y.A.M.S.; Sup.Ct. Rule 98.01.

      . “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. * * *."


text:
    In the Matter of the ESTATE of Edward SCHWIDDE, Deceased. Robert W. SCHWIDDE, Administrator c.t.a.d.b.n. of the Estate of Edward Schwidde, deceased, Appellant, v. SCHOOL OF the OZARKS, Masonic Home of Missouri and Evangelical Deaconess Society of St. Louis, Missouri.
    No. 49434.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.
    N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, for heirs.
    R. Forder Buckley, Fred J. Hoffmeister, St. Louis, for administrator.
    Green, Hennings, Henry, Evans & Arnold and Robert D. Evans, St. Louis, for respondent School of the Ozarks.
    Richard O. Rumer, St. Louis, for respondent Masonic Home of Missouri.
    Ziercher, Tzinherg, Human & Michen-felder and Herbert W. Ziercher, Clayton, for respondent, Evangelical Deaconess Soc. of St. Louis, Mo.
   HOUSER, Commissioner.

This is an appeal by Robert W. Schwidde, Administrator cum testamento annexo de bonis non of the Estate of Edward Schwidde, Deceased, from the order, judgment and decree of the Circuit Court of the City' of St. Louis removing him from office, etc..

The first question is whether this or the circuit court-has jurisdiction. School of the Ozarks, Masonic Home of Missouri and Evangelical Deaconness Society of St. Louis, Missouri filed a petition in the probate court.\to remove the administrator, praying for revocation of letters and appointment of a substitute, and for an order on the newly appointed administrator to make distribution to petitioners. The administrator caused the probate judge to be disqualified and the matter was ordered certified- to the 'Circuit Court of the City of St. Louis, under § 472.060, RSMo 1959, V.A.M.S. In circuit court the administrator and heirs^ filed, a- joint motion to dismiss. The petition and.motion were assigned to Division No. 14, and there tried and determined by Circuit Judge Theodore McMil-lian, who entered his order, judgment and decree in that division of circuit court on February ,5, .1962. The administrator desiring, to, appeal, but uncertain as to which course to take, filed two notices of appeal: an appeal to the Circuit Court of the City of St. Louis on the theory that Judge Mc-Millian was sitting as a probate judge and that the judgment rendered was a probate court judgment; another appeal to the Supreme Court on.the theory that the judgment rendered was a circuit court judgment. Section 472.060, ' supra, provides in part that “when the,objections are made (to the probate judge sitting in the case), the cause shall be' certified to the circuit court, which shall hear and determine same; and the clerk.of the circuit court shall deliver to the probate court a full and complete transcript of the judgment, order or decree made in the cause, which shall be kept with the papers in said office pertaining to said cause.” (Parentheses supplied.) The circuit court, on proper certification under § 472.060, supra, acquires jurisdiction as a circuit court. Although the proceeding retains its probate character, Hewitt v. Duncan’s Estate, 226 Mo.App. 254, 43 S.W.2d 87; Keele v. Weeks, 118 Mo.App. 262, 94 S.W. 775, the judgment rendered on such certification is a judgment of the circuit court, not of the probate court, and the affidavit for appeal must be filed in the circuit court, and not in the probate court. The appeal must be taken to the supreme court or court of appeals, depending on the amount in controversy or other jurisdictional consideration, and not to the circuit court. Since the amount in controversy exceeds the sum of $15,000 the appeal was properly taken to this Court.

The facts are undisputed. Edward Schwidde died February 17, 1959 leaving two wills, one dated December 30, 1958, leaving his entire estate to Mr. and Mrs. W. C. Huttger; the other dated August 28, 1951, leaving the bulk of his estate to nine named charities. The earlier will was admitted to probate. An application for probate of the later will was denied. Certain heirs filed suit to contest the earlier will, and some of the charities intervened in that case. Other charities filed a separate suit to contest the earlier will and to have the rejected will adjudged to be decedent’s last will and testament. While the will contests were pending the heirs and the nine charities entered into a written agreement which obligated the nine charities, if and when ■they should receive the assets of the estate as the result of the will of 1951 having been finally adjudicated to be the last will and testament of deceased, “and pursuant to the final Order of Distribution in accordance with the provisions of said will,” to “pay over to [the heirs] and their attorney” the sum of 57% of the net value of the estate after deducting costs of administration, including court costs, executor’s and attorney’s fees, allowed claims and taxes, but not including estate or inheritance taxes. The agreement further provided that the •settlement and payments therein provided for were contingent upon (1) the ability of the charities to uphold the will of 1951 and (2) the charities receiving the assets as beneficiaries of the will, “and that the percentage of said estate is to be paid by said [charities] only at such time as said [charities] receive their bequests under said Will in accordance with the Orders and Judgments of the St. Louis Probate Court.” The charities agreed that “upon receipt of the same, as hereinbefore provided they shall immediately and all at the same time pay over to N. Murry Edwards, attorney for the [heirs], the above described proportionate share of the assets of said estate for the benefit of said attorney and the [heirs] * * *.” Trial of the will contests resulted in the upholding of the 1951 will. Thereafter the successor to the trust company named as executor in the 1951 will applied for letters testamentary and to be appointed executor. Objections to the appointment were filed. Litigation ensued. Later by written agreement of the interested parties (the heirs and their attorney, the charities and the trust company) the trust company withdrew its application and the parties consented to the naming of Robert W. Schwidde, one of the contesting heirs, as administrator c. t. a. d. b. n. of the estate, and the representation of the administrator by counsel selected by and acceptable to the nine charities. Mr. Schwidde was appointed and two highly reputable attorneys were selected by the nine charities to represent him. Thereafter Mr. Schwidde, administrator, found himself with $496,188.36 cash on hand. A partial distribution was deemed advisable. The question of the amount of the federal estate tax had not been determined. There were several different methods of determining the tax. Accountants employed to calculate the possible tax liability had reported that the greatest amount the heirs could receive, for their part, under the settlement agreement was $189,700 and the least amount was $155,700. With these figures in mind counsel for administrator determined they would ask for distribution of $297,000, which would leave a balance of more than $200,000 for taxes and expenses. The heirs would get $148,500 and the charities $148,500 under this plan. Counsel prepared a petition for partial distribution alleging that the administrator had in possession cash in the amount first above stated; that the time for filing claims had expired; that there were no outstanding claims and the only claims to be paid before final settlement would be for federal estate, inheritance and income taxes and administration costs; that pursuant to the will and under the terms of the settlement agreement theretofore executed distribution was to be made to the nine charities, each of which was entitled to an undivided ⅛ interest, and praying for an order of partial distribution of $297,000 to nine named charities in the sum of $33,000 each. Upon the filing of the petition for partial distribution a copy of the agreement settling the will contests was filed in probate court. Partial distribution in accordance with the petition was ordered on July 3, 1961. Distribution was then made as follows: acting on the advice and at the direction of his counsel Mr. Schwidde issued checks for $16,500 to each of the nine charities and issued nine checks for $16,500 payable to the attorney for.the heirs, and sent each of the charities its check for $16,500 and a form for signature, acknowledging receipt of $33,000. The attorneys for the administrator conceived this to be a proper and expeditious method of effectuating the provision of the. settlement agreement that upon receipt -of their bequests the charities would “immediately and all at the same time pay over to” the attorney for the heirs their proportionate share of the assets of the estate. (The discrepancy between the 57% agreed upon and the 50% actually tendered was explained by one of the attorneys for administrator on the basis that “nobody [certainly not the heirs] could be prejudiced by doing it that way.”) Six of the nine charities acquiesced in this arrangement, accepted the $16,500 checks and executed and returned to the administrator their separate receipts for $33,000. Three charities (School of the Ozarks, Masonic Home of Missouri, and Evangelical Deaconess Society of St. Louis, Missouri, these petitioners) refused to accept the $16,500 checks tendered, returned the checks and unsigned receipts, and filed in probate court’ a petition to re-?move the administrator and for an order of distribution, alleging refusal on the part of the administrator to make distribution to petitioners unless they would accept $16,500 and execute a receipt showing they had received $33,000; that the purpose of the unlawful demand was to require the charities to enable the administrator to pay the heirs’ attorney $16,500 out of the distribution to each legatee, purporting to be payable under the settlement agreement, but that there was controversy between the attorney for the heirs and the legatees; that under the agreement the sums due the heirs were not payable by the administrator, nor yet payable by the charities until the assets of the estate were received by them pursuant to the final order of distribution; that by using his position as administrator, as aforesaid, the administrator had rendered himself unsuitable to execute the trust reposed in him and had failed to discharge his official duties, and was using his office as administrator for his own benefit. The prayer was for removal of Robert W. Schwidde as administrator, appointment of a new administrator, and that the probate court order the newly appointed administrator to make distribution in the full amounts provided in the order of partial distribution of July 3, 1961, with interest. At this juncture the matter was certified to the circuit court. In circuit court Mr. Schwid-de, administrator, and the heirs, joined in the filing of a motion to dismiss the petition to remove the administrator and for an order of distribution. At the hearing on the petition to remove, one of the administrator’s attorneys testified that it was agreed that it.was the desire of all nine charities to terminate all litigation as soon as possible so the estate could be settled in an orderly fashion and the assets distributed in accordance with the settlement agreement between the heirs and the nine charities; that Mr. Schwidde had been appointed by agreement; that it was agreed that the nine charities would select attorneys to represent him; that he and his co:counsel advised Mr. Schwidde to distribute the money in this manner; that they handled the matter as they did because they felt this represented and carried out the intention of the parties as expressed in the settlement agreement; that Mr. Schwidde never did anything against or in opposition to the advice of his attorneys, but followed their advice at all times; that none of the charities had objected or asked either of the attorneys to cease representing estate; that he and his co-counsel made the distribution “in accordance with the order of Probate Court,” and that the order referred to the settlement and that the court took the settlement into consideration. On February 5, 1962 the circuit court dismissed the motion of the administrator and heirs to dismiss petitioners’ application; sustained petitioners’ ap: plication for an order of distribution and further ordered that the amount allowed by the probate court as partial distribution be paid in full to the legatees designated by the court, free of any claims or deductions for the heirs or their attorney; dismissed the application to remove Mr. Schwidde as administrator, but on the court’s own motion removed Mr. Schwidde as administrator “for the reason that his interest as Administrator and as an heir at law of the deceased Edward Schwidde are irreconcilable in interest so as to make him incapable and unsuited to execute the trust reposed in him so as to impartially be able to perform his official duties.” The court further ordered Mr. Schwidde to malee an accounting, and turn over all remaining assets to the person designated in the order as the new administrator. Post-trial motions having been overruled, the administrator duly appealed.

Appellant contends that the court erred in removing him as administrator because (1) the finding that his interest as an heir was irreconcilable with his interest as administrator was erroneous; (2) the evidence failed to show that he was in anywise incapable or unsuitable to execute or that he violated the trust reposed in him, but showed that at all times he acted in good faith on advice of counsel, who in turn acted properly under the terms of the settlement agreement and order of partial distribution in advising and directing him to make partial distribution as attempted. Respondents claim that Mr. Schwidde proved himself unsuitable to execute the trust reposed in him, failed to discharge his official duties, wasted and mismanaged the estate, and was properly removed. They see a conflict of interest between Mr. Schwidde and the beneficiaries of the estate for whom he acts as trustee, arising out of the fact that he is an heir (but not a beneficiary under the will) and a party to the settlement agreement, as to the terms of which a dispute has arisen.

Section 473.140, RSMo 1959, V.A.M.S., provides in part: “If any * * * administrator becomes * * * in anywise incapable or unsuitable to execute the trust reposed in him, or fails to discharge his official duties, or wastes or mismanages the estate, * * * the court, upon its own motion, or upon complaint * * * by any person interested supported by affidavit, after notice to the * * * administrator, * * * shall hear the matter and may revoke the letters granted.”

We conclude that while the action of the administrator was improper, it did not render him unsuitable to execute the trust or justify removal from office under § 473.140. His action was improper because he did not comply with a clear and unambiguous order requiring him to pay petitioners $33,000 each. The fact that petitioners may have been obligated by contract to pay a part of the bequest to the heirs and their attorney did not alter the administrator’s duty under the order. Neither the probate court, State ex rel. Jones v. Jones, 131 Mo. 194, 33 S.W. 23, 26, nor an administrator, has “power to pass upon the rights or claims of third persons against legatees * * * of estates in the course of administration, or * * * power to substitute contending parties in the place of the legatees * * Neither the probate court, In re Gillis’ Estate, Mo.App., 33 S.W.2d 973, nor an administrator, is concerned with the rights or claims of creditors against legatees, and it is the duty of the probate court to order distribution of the assets to the legatees entitled thereto, In re Gillis’ Estate, supra, and the duty of the administrator to distribute to those so entitled, “regardless of the claims of their creditors.” We disapprove of the action of the administrator in assuming to act as judge and jury by withholding $16,500 from three legatees entitled to $33,000, in this effort to insure that he and other heirs and their attorney recovered their share of the legacy under the collateral contract. Requiring a receipt for $33,000 while tendering a check for $16,500 is insupportable. But the impropriety related merely to the mode of payment — the proper method of carrying out the court order. There is no evidence of bad faith, fraud, dishonesty, or an attempt to deprive petitioners of property lawfully theirs or to convert the property to the use of the administrator. On the contrary, the record convinces us that the administrator, acting upon the advice and at the direction of highly regarded counsel, misconceived his duties under the court order because of a misinterpretation of the terms and force and effect of the settlement agreement. He and they considered that the settlement agreement, which was filed in court and presumably was before the probate judge when the order of partial distribution was made, was an implied provision of the court order; honestly believed that under the settlement agreement and order he was authorized to pay the $16,500 direct to the heirs and their attorney, and in good faith considered that he was complying with, not violating, the order. Thus a bona fide dispute arose as to the proper method of carrying out the order, in view of the terms of the settlement agreement. We find no “irreconcilable conflict of interest” rendering Mr. Schwidde unsuitable to continue to execute the trust. We are unable to approve the harsh and punitive action of removal from office under § 473.140 on the basis of a bona fide dispute as to method and procedure, when the estate and the charities have suffered no loss; the assets are fully protected by a solvent bond in the sum of-$525,000; the administration of the estate is near an end; the administrator is fully capable of finally settling the estate; there is no antagonistic conflict of interest between the administrator and the heirs or their attorney, in a case where removal will serve no useful purpose but merely add to expense and delay in reaching a final settlement. Groves v. Aegerter, 226 Mo.App. 128, 42 S.W.2d 974, 979 [10], 980 [11], while different on the facts, is instructive on this question.

These considerations make it unnecessary to consider appellant’s further points that the petition to remove appellant did not allege sufficient facts, and was defective in form.

Appellant contends that the circuit court erred in ordering that the amounts allowed by the probate court on July 3, 1961 as a partial distribution be paid to- petitioners in full, “there being no provision in the statutes for' an order of distribution on an order of distribution.” The plain import and intent of the order appealed from was a direction to the newly appointed, incoming administrator to execute the original order of partial distribution, for it was based upon a. petition which prayed “[t]hat the Court order the administrator, c. t. a., whoever he may he to make distribution to petitioners, residuary legatees, in the full amounts provided in the order of distribution of July 3, 1961, * * (Italics ours.) The effect of our ruling is to set aside the appointment of the new administrator. This renders the order of distribution of February 5, 1962 functus officio, for it was directed at the newly appointed, incoming administrator. This leaves the original order of partial distribution in full force and effect, requiring the administrator to pay $33,000 to each of the petitioners.

Accordingly, the order and judgment of the circuit court dated February 5, 1962 is reversed- and the cause remanded with directions to the circuit court to set the same aside and enter a new order and judgment, effective as of February 5, 1962, (1) sustaining the administrator’s and heirs’ joint motion to dismiss the petition to remove Robert W. Schwidde, administrator c. t. a. d. b. n. and for an order of distribution, and ordering that said petition be dismissed; (2) directing the administrator forthwith to pay petitioners the full amount to which they are entitled under the order of July 3, 1961; and (3) ordering the administrator to proceed with the administration of the estate. It is further ordered that the clerk of the circuit court deliver to the probate court a full and complete transcript of the judgment, order and decree made in this cause, pursuant to the requirement of § 472.060, supra.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.