author:
WALKER, J.
      WOODSON, C. J.

text:
    THE STATE ex rel. CHARLES J. LEPPERT et al. v. CORNELIUS ROACH, Secretary of State.
    In Banc,
    December 22, 1915.
    1. CORPORATION: Incorporation Tax: Distinction Between Capital and Capital Stock. In determining the amount of money which a'corporation must pay to the Secretary of State for its certificate of incorporation, it is not material to accurately define, and distinguish the difference in meaning of, “capital” and “capital stock.” The amount of money required by law to be paid into the corporation’s treasury in money' or money’s worth for the prosecution of its business when organized, may not improperly be termed its capital stock, but it also constitutes its assets or capital, because it is its actual and only property. r
    2. -: -: A Tax and Not Fees'. The money required to be paid by incorporators as a prerequisite to the issuance of the articles of incorporation is not a fee for clerical services to be rendered by the Secretary of State, but is a tax levied by the State on a corporation at its creation, for revenue purposes. And being a tax they must pay in proportion to the true value of its actual assets taken as capital stock, whatever be the proposed capitalization — the ruling, however, not being applicable to business companies incorporated in pursuance, to statute upon the payment into the corporate treasury of fifty per cent of their authorized capital stock.
    3. -: -: -: Title of Constitution Article. The title of an article of the Constitution in which a certain section is .found is, in a legal sense, no part of said section and cannot be used to amplify or restrain its meaning; but it may be properly considered in determining the purpose of the framers of the instrument in classifying the section — under the general rule that a title is presumed to express the intent of a law unless plainly contradicted by its body. And, hence, the fact that the section of the Constitution providing that no business corporation shall be created unless the persons named as corporators shall, at or before the filing of the articles of association, pay into the State Treasury, the fees therein specified, is found in the article entitled, “Revenue and Taxation,” authorizes the conclusion that the title indicates the nature of that payment to be that of a tax, and not a mere fee for clerical services.

      4. -: -: Amount. Where the affidavit of the incorporators attached to the articles of association states that the true value of the money and property to be taken in payment of the capital stock of the corporation is $91,000, the incorporators must pay an incorporation tax on that sum, and cannot satisfy the demands of the law by applying for the formation of a corporation with an authorized capital stock of $50,000 and tendering a fee based on a capitalization of $50,000.

      Held, by WOODSON, C. J., dissenting, that the incorporators of a business corporation may arbitrarily capitalize their . company for any amount they deem proper, within the limits prescribed by the statutes; that the board of directors may declare dividends out of any surplus money the corporation may have on hand over and above its capitalization, including money contributed by its stockholders after the incorporation has been effected; that the mere fact that the corporators, at the time of applying for incorporation, announced their intention to use in the business of the company any moro money or property than that represented by its capitalization would not change the legal status of the company, capitalization or shares of stock, nor would the fact that such an announcement was contained in the application for the charter; and that the announcement in the articles that they intended to use $41,000 worth of property over and above the capitalization in the business of the company, was wholly voluntary, constituted it no part of the capitalization, and did not authorize the Secretary of State to assess an incorporation tax thereon.
    5. -: -: ---: Surplus. A ruling requiring a company to incorporate for the true value of its property taken as capital stock as shown by the articles of agreement will not prevent it from accumulating a surplus. After a company is incorporated, the State does not concern itself with the manner in which it conducts its business, whether successfully or otherwise, provided it complies with the law.
    Mandamus.
    'Writ quashed.

      Leahy} Saunders S Barth and David W. Voyles for relators.
    (1) This is a mandamus proceeding to compel the Secretary of State, respondent herein, to accept articles of incorporation showing on their face an itemized list of property, amounting to $91,084.56, -whereas the capital stock is fixed at $50,000. Respondent insists that the capital stock of the proposed corporation, Leppert-Roos Fur Company, must equal the amount of its assets, and that the company cannot be incorporated with a surplus. (2) The relators have the right, under the laws of this State, to fix the capital stock of the corporation which they have associated to organize, at any sum agreed upon by them, within the maximum and minimum limits, provided by law. R. S. 1909, sec. 3354, as amended by Laws 1911, p. 148. (3) The practical administrative policy followed in this State for many years to incorporate companies with a surplus, uniformly acquiesced in heretofore, is of persuasive force and opposed to any construction of the statutes which would impute to the General Assembly an intention to prohibit the organization of corporations with a surplus. Timmonds v. Kennish, 240 Mo. 328; Folk v. St. Louis, 250 Mo. 141; Ewing v. Vernon County, 216 Mo. 689; Westerman v. Supreme Lodge, 196 Mo. 709State ex rel. v. Reiehmann, 239 Mo. 95; Ross v. Railway, 111 Mo. 25. (4) The purpose of the Act of 1911, Laws 1911, pp. 148-149, enacting a new section in lieu of Sec. 3339, R. S. 1909, requiring a disclosure of the value of the property transferred for the payment of capital stock, is for the protection of the stockholders and those who might deal with the corporation by preventing an overissue of such stock. The act was borrowed from Massachusetts. 2 Revised Laws Mass., chap. 110, 1902; Bank v. Hingham Mfg. Co., 127 Mass. 563; Elevator Co. v. Tow Boat Co., 152 Mass. 431. (5) The logical consequence of the proposition that incorporators are not permitted to so fix the amount of capital stock, in reference to the total assets of the company as to leave a surplus, is that, after a corporation has once been formed, no surplus can be accumulated for a period longer than would be necessary to convert it into capital stock or to distribute it in dividends; and this is contrary to a later express statutory enactment in this State as to certain classes of corporations. Laws 1915, p. 159, sec. 1.16; Laws 1913, p-. 168', sec. 5. (6) (a) Our constitutional provision and subsequent statutory enactments based thereon, providing for payment into the treasury of fees upon incorporation, based on the issue of stock or subsequent increase thereof, is merely a requirement for payment to the State of a special form of compensation for the granting of the corporate franchise, and is not primarily a revenue measure, the taxation of corporations being provided for in other ways. 2 Tiedeman, State and Federal Control of Persons and Property, p. 953; Constitution, art. 10, sec. 21; R. S. 1909, secs. 2376, 11357 and 11552. (b) The use of the term “capital stock” in the Constitution and in the statutes relating to license fees requiring payment into the State Treasury of fees upon incorporation, cannot afford any basis upon which such provision could be construed to mean that like fees are required to be paid upon the capital of such corporation, as a wide distinction exists between the terms “capital stock” and “capital.” The former is the sum fixed by the corporate charter as the amount paid in, or to be paid in, by the stockholders; while the latter.is the actual property of the corporation constantly increasing or diminishing in value. 1 Cook on Corporations (7 Ed.), sec. 8; 6 Cyc. 347; Abbott’s Dictionary of Terms and Phrases, used in American and English Jurisprudence (1879), “Capital Stock;” Bouvier’s Law Dictionary, “Capital,” “Capital Stock;” Wells v. Green Bay Co., 90 Wis. 442; Thompson on Corporations (2 Ed.), sec. 3408; R. S. 1909, sec. 11519; Railroad v. Shacklett, 30 Mo. 550; State v. Railroad, 37 Mo. 267; St. Joseph v. Railroad, 39 Mo? 478; State ex rel. v. Brinkop, 238 Mo. 312. (c) A resume of the constitutional and statutory provisions in Missouri, from 1820 to date, conclusively establishes that the distinction between “capital” and “capital stock” has always been maintained in this State, (d) Section 3348, R. S. 1909, governs the declaration of dividends of manufacturing and business corporations and makes the directors jointly and severally liable for the payment of dividends when the company is insolvent. Since directors are penalized for the illegal payment of ■dividends, their discretion as to creating a surplus should not be taken from them. Shields v. Hobart, 172 Mo. 517; McLaren v. Planing Mills Co., 117 Mo. App. 40; Laws 1915, sec. 60, p'. 130, sec. 121, p. 163, also secs. 116 and 171, pp. 159 and 193.

      John T. Barker, Attorney-General, 8. P. Hoivell and Lee B. Eiving, Assistant Attorneys-General, for respondent; Kenneth Sears of counsel.
    (1) That prior to the Act of 1911, corporations were permitted to file their articles and receive a certificate of incorporation from the Secretary of State with a “capital stock” less than the actual value of the assets is not decisive or even persuasive on the court under the facts of the ease at bar. Under the act mentioned the Legislature specifically required the incorporators to set out in detail the amount and value of the property set aside for the purpose of paying the “capital stock” in order that the Secretary of State could ascertain and know whether or not the asests exceeded the proposed “capital stock.” Secs. 3339-3341, R. S. 1909; Laws 1911, pp. 148-149; Bank v. Gillespie, 209 Mo. 255. (2) Regardless of the purpose of the Act of 1911 the constitutional provision, article 10, section 21, must be given its legitimate effect. (3) In section 21 of article 10 of the Constitution of Missouri a method is provided by the organic law for the purpose of producing revenue, and not merely, as contended by relator, for the. payment of a fee to the Secretary of State for issuing a certificate of incorporation. State ex rel. v. Lesnenr, 99 Mo. 557; State ex inf. v. Gun Club, 121 Mo. App. 372. (4) In the formation of a corporation “capital stock” means the funds of money or property on which and with which the business is to be commenced and carried on; and in revenue statutes the term is often used as synonymous with assets or property. San Francisco v. Spring Valley Waterworks, 63 Cal. 531; Burrall v. Bushwick, 75 N. Y. 216; People ex rel. v. Ginseng Co., 105 N. Y. App. Div. 178; Railroad v. Shacklett, 30 Mo. 560; State v. Railroad, 37 Mo. 265; St. Joseph v. Railroad, 39 Mo. 478; People v. Morgan, 178 N. Y. 433, 58 L. R. A. 514; State Board of Equalization v. People, 191 111. 547; Hubbard v. Bush, 61 Ohio St. 261; Sturgess v. Carter, 114 U. S. 511;- Tel. Co. v. Norman, 77 Fed. 22; State v. Duluth Gas & W. Co., 76 Minn. 96, 57 L. R. A. 63; Railroad v. Allen, 15 Fla. 660; Oil Mill Co. v. Decell, 33 So. (Miss.) 412; Foster v. Stevens, 63 Vt. 182; 6 Cyc. 348; 1 Cook’s Stockholders & Corporation Law (3 Ed.), sec. 9.
   WALKER, J.

This is an original proceeding by mandamus instituted in this court by relators to compel the respondent, who is the Secretary of State, to issue articles authorizing the creation of a business corporation under article 7, chapter 33, Revised Statutes 1909, as amended (Laws 1911, p. 148.) The application was made for the formation of a corporation with an authorized capital stock of $50,000; and the required fee based on this capitalization was tendered. Under the statute of 1911, supra, when the capital stock of a company applying for incorporation consists of property instead of cash, it is required that the articles of agreement give an itemized description of such property, sworn to by the officers and directors of the proposed company, setting out the cash value of each item thereof; if realty, a specific description of same is to be given, with the cash value of each tract; if personalty, the location of each class of property is to be given, with its actual value by classes. In the instant case the capital stock, except $1000' in cash, consisted of personalty, which was in the articles of agreement classified and valued as required by the statute. The aggregate valuation of same so set apart and to be employed in the business of the company was more than $91,000. In their affidavit attached to the articles of agreement relators say that the property described is to be taken in payment of the capital stock of said company and that the value placed thereon by them is the actual cash value of such property. Regardless of this showing, relators contend that they are entitled to fix the amount of the capital stock of the proposed corporation arbitrarily at $50,000, which is the maximum amount of capital stock for which the minimum fee may be paid to the State for a charter. Under this state of facts the respondent refused to issue the articles of incorporation, on the ground that the capital stock of the proposed company, as shown by its articles of agreement and as admitted by relators in their affidavit thereto, was $91,000', and the fees required to be paid to the State upon this capitalization should have been tendered to authorize the granting of the charter.

Time need not be taken or words wasted in defining the distinction between the capital and the capital stock of a corporation. The distinctive meanings of these terms, many of which have been compiled by industrious counsel, need not concern us here, because they afford no aid in determining the question under consideration. Whatever differences there may be between their' respective meanings are well enough when applied to a going corporation which has accumulated assets, properly termed its capital, but such! conditions do not exist here. A company is sought to be incorporated. It is immaterial that the business in which it proposes to engage was theretofore conducted by relators as individuals. So far as the State is concerned the incorporation of the company is the beginning of its business. The amount required by law to be paid into its treasury by its stockholders in money or money’s worth for the prosecution of its business when organized may not improperly be termed its capital stock, but at the same time this constitutes its assets or capital, because it is the actual and only property of the corporation. In fact,- as a newly created corporation its full paid capital stock is, in the very nature of its existence, all that it can possess. That is the condition here, and one of the questions to be determined in this case is whether the proposed incorporators are asking incorporation on a capitalization based on the true value of the capital stock as shown by their sworn statement or upon an arbitrary amount less than such true value.

Confronted with this state of facts, it is necessary to determine the nature of the payment required to be made by relators to authorize the respondent in issuing the articles of incorporation, and the manner in which this payment is to be measured. In other words, directing the inquiry to the concrete case, is the payment required to be made by incorporators as a prerequisite to the issuance of the articles of incorporation a fee for clerical services rendered by the Secretary of State; or, is it a tax levied by the State on a corporation at its creation, for revenue purposes? If 'a fee, the amount for which a coi'poration may be capitalized may be fixed arbitrarily by the incorporators regardless, as in this case, of the value of the property to be taken as capital stock as set forth in ' the articles of agreement required to be filed when application is made for the charter, provided, of course, that value is equal to the total amount for which the company is to be incorporated. If, however, the payment required is in the nature of a tax, then the company must be incorporated for an amount equal to the total cash value of the property to be taken as the capital stock set forth, as before stated, in the articles of agreement. This for the reason that a capitalization for a less amount than the .total cash value of the property set forth in the articles of agreement would prevent the levy and collection of the corporation tax upon the full amount of the capital which the company proposed to employ in its business; or, conversely, it would enable the company to escape the payment of a corporation tax upon the value of the property in excess of the amount for which the company was incorporated.

A section of our State Constitution (Soc. 21, art. 10), under the subdivision entitled, “Revenue and Taxation,” provides, among other things, that no business corporation shall be created or organized under the laws of this State unless the persons named as corporators shall, at or before the filing of the articles of association or incorporation, pay into the State Treasury the fees therein specified. This is followed by a general proviso that nothing contained in the section shall be construed to prohibit the General Assembly from levying a further tax on the franchises of a corporation.

This section first found lodgment in our laws in the present Constitution, and while held to be self-enforcing (State ex rel. v. Lesueur, 145 Mo. 322), the General Assembly, in 1879 (Sec. 708, R. S. 1879), deemed it proper to enact (Sec. 2976, R. S. 1909), in the words of the Constitution, that portion of the constitutional section regulating the amount to be.paid the State to authorize the issuance of articles of incorporation. This fact, if it have no other pertinence, is indicative of the importance with which the section was regarded by the General Assembly, because the action of the latter was not necessary to render the section operative.

We have’shown that the section appears in the Constitution under the title of “Revenue and Taxation.” While a title is, in a legal sense, no part of a law and cannot be used to amplify or restrain same, it may properly be considered here in determining the purpose of the framers of the organic law in thus classifying the section, under the general rule that a title is presumed to express the intent of a law unless plainly contradicted by the body of same. [Conn. Mutual Life Ins. Co. v. Albert, 39 Mo. 181; Sedg., Stat. Con., p. 39.] Applying this rule to the concrete case, the conclusion is authorized that the title indicates the nature of the payment required to be that of a tax and not a mere fee for clerical services, and there is nothing in the section which militates against the correctness of this conclusion; besides, it is supported not merely by abstract reasoning, but it has judicial sanction. Note the language employed by this court in discussing this section in State ex rel. v. Lesueur, 99 Mo. l. c. 557:

“Section 21 of article 10 of the Constitution is plain. By it no association can be incorporated for any purpose other than for benevolent, religious, scientific and educational purposes, without the payment of a tax. This tax ... is fixed at fifty dollars for the first fifty thousand dollars or less of capital stock and five dollars additional for every additional ten thousand dollars of stock. Now it is plain that the payment of the tax cannot be evaded by organizing a corporation under a law which makes no provision for stock. It is equally clear that the Legislature- has no power to authorize the evasion of the payment by allowing corporations to be organized under this benevolent law, as it is called, without a capital stock. This court held in express terms in State ex rel. Richey v. McGrath, 95 Mo. 193, that the payment could not be avoided by reason of a legislative declaration that the corporation was one formed for benevolent purposes, when tlie law under which it was brought into existence showed that it was a money-making institution.”

In the McGrath case, supra, the court designated the payment required to be made by the section- under review as a tax. In State ex rel. v. Lesueur, 145 Mo. 322, where the consolidation of two railroad companies so as to form one company was under consideration, it was held that to effect this end the payment of the incorporation tax prescribed by the section was necessary. In Cement Company v. Gas Company, 255 Mo. l. c. 39, it was held, arguendo, that domestic corporations organized for profit must pay a corporation tax to the same extent and amount as foreign corporations. From these cases it appears that no doubt has been entertained as to the character of the payment in question and that it has uniformly been regarded as a tax. If it was nothing more than a fee for clerical services it is not reasonable that it would have been regulated in accordance with the amount for which the company was to be incorporated, nor would it have been deemed of sufficient importance to receive constitutional as well as statutory recognition. Finally, it is evident from the proviso to the section that the framers of same regarded the payment therein required as in the nature of a tax, in authorizing the General Assembly “to levy a further franchise tax on business corporations.”

From the foregoing it follows that the nature of the payment required to be made to authorize the issuance of articles of incorporation, is a tax. Thus classified, one of the purposes of the Act of 1911, supra, becomes evident, viz., to enable the Secretary of State to determine from the articles of agreement the cash value of the property proposed to be taken as the capital stock. The information thus required to be given by the act is of two-fold importance; one in the protection of the public, that no corporation may be organized in which property is taken as capital stock unless the value of same is equal to the proposed capitalization; the other in the interest of the State in the exercise of its taxing power, that a corporation may not be organized for a less amount than is shown by the sworn statement of its officers and directors to be the cash value of its property proposed to be taken as the capital stock, which would result in the State being deprived of the corporation tax on the excess of the value of the property above the proposed capitalization. From all of which the conclusion is authorized that the manner of the payment required to be made to the Secretary of State to authorize the issuance of articles of incorporation, is to be regulated by the true value of the property to be taken as capital stock and that this value should fix the basis of the capitalization of the company. This holding is subject to the limitations of section 3339, Revised Statutes 1909, as amended, Laws 1911, p. 148, which provides • for the incorporation of business companies upon the payment at the time of their organization of fifty per cent of their authorized capital stock.

There is no merit in the contention of relators that a ruling requiring a company to incorporate for the true value of its property taken as capital stock as shown by the articles of agreement, will result in the prevention of the accumulation of a surplus. After a company is incorporated the State does not concern itself with the manner in which it conducts its business, whether successfully or otherwise, provided it complies with the law.

In view of what has been said the relators ’ motion for a judgment on the pleadings is overruled, and respondent’s demurrer to relator’ petition is sustained, which results in the quashing of the preliminary writ issued herein, and it is so ordered.

Graves, Bond and Blair, JJ., concur; Baris, J., dubitante; Woodson, G. J., dissents in separate opinion in which Revelle, J., concurs.

WOODSON, C. J.

(dissenting). — I understand that the following legal propositions are true and indisputable.

First: That the incorporators of a business corporation may, under the laws of this State, arbitrarily capitalize their company for any amount they deem proper, within the limits prescribed by the statutes; and that the company, after it is incorporated, may, in addition to its capital, use in its business any sum of money its board of directors may fix, whether borrowed money or funds contributed by the stockholders.

Second: That the capital of the company may be paid in money or property, and that the par value of all the stock of the company must correspond in amount to the capitalization of the company so arbitrarily fixed by the incorporators, fully or partially paid, as the case may be.

Third: That the respective shares of the stock of the company cannot be issued for a sum in excess of their par value or face value, nor can the aggregate amount thereof exceed the amount of the capital of the company.

Fourth: That when the capital stock of the company so arbitrarily fixed has been fully paid in money or property, as prescribed by statute, neither the State nor its creditors can compel the company or its stockholders to pay for the use of its business, solvent or insolvent, any sum in excess of the par or face value of. its capitalization; if insolvent, of course the State may force a discontinuance of its business or a dissolution of the company, and its creditors may force it into bankruptcy.

Fifth: That the board of directors of any such company may, at the proper time and in the proper manner, pay off and' discharge any and all indebtedness the company may owe, and may declare dividends out of all surplus moneys or profits it may have on hand over and above its capitalization, whether earned by the company as profits or contributed to it by tbe stockholders after the incorporation has been effected.

Under the foregoing incontestable legal propositions, it seems to me that there is no escape from the .conclusion that all contributions or donations made by the stockholders to the company, over and above its capitalization, whether made before or after the incorporation has been perfected, are voluntary acts upon their part, and in no sense constitute-a part of the capital of the company, and the company may at any time, in a proper manner, pay all such sums back to the stockholders, and such act would in no sense impair the capitalization of the company, nor do violence to its legal perfection; and neither the State nor the creditors of the company could legally object thereto or prevent such repayment. Of course, if the company should become insolvent before the payment or distribution had been made, then certain equitable and possibly certain legal rights might arise which might prevent the company from paying such sums back to the stockholders; but that is totally foreign to the question in hand, and needs no further consideration.

The fact that the law imposes a certain tax on the capital of a business company at the time of its incorporation can in no manner force the incorporators to increase its capitalization to the amount they desire or intend to use in its business; and it is wholly immaterial whether that intention is announced before or after the company has been incorporated. This must be true for the obvious reason that the incorporators may, under the law, as before stated, arbitrarily fix the amount of the capitalization of the company, and may in addition thereto use in its business any sum its agents and officers may deem1 proper.

Moreover, as previously stated, the mere fact that the stockholders, at the time of applying for the articles of incorporation, announced their intention to use in the business of the company more money or prop-' erty than that represented by, its capitalization would not change the legal status of the company, its capitalization, nor share of stock from what they would have been had that announcement been made subsequent to the perfection of the incorporation; nor would the fact that said announcement was made to the Secretary of State in an application for a charter change the situation in the least, for the reason that the law makes no such requirement of the stockholders, nor has the Secretary of State any legal right to require the performance of anything by them which the law does not require. Where it speaks he must speak, but where it is silent he must be silent.

In the case at bar the statement contained in the articles of agreement or application for the charter, that they intended to use $41,000 worth of property over and above the capitalization of the company, in the business thereof, was wholly voluntary on their part, and therefore constituted it no part of the capital of the company.

For the reasons stated I dissent from the majority opinion, and believe the alternative writ of mandamus heretofore issued should be made permanent.


source: Caselaw Access Project

author: GRAVES, J. WOODSON, C. J.

license: Public Domain

text:
    SADIE E. MILLER et al., Appellants, v. THOMAS STAGGS et al.
    In Banc,
    December 22, 1915.
    1. GUARDIAN’S SALE: For Less Than Three-Fourths of Appraised Value. A private sale of real estate for less than three-266M0.29 fourths of its appraised value, whether by a guardian or administrator, is void, although approved hy the prohate court, for the court in such case has no jurisdiction to approve it. [Following Carter v. Culbertson, 100 Mo. 269, and overruling Smith v. Black, 2-31 Mo. 681.]
    2. QUIETING TITLE AND EJECTMENT: Judgment for Rents. In a suit, in one count, to quiet title, and in another, in ejectment, where the judgment is that defendants have no title, and it is admitted that the monthly rents and profits are a certain sum since the date of ouster, plaintiff should have judgment on the first count quieting the title, and on the other judgment for possession and for monthly rents and profits.
    Held, by WOODSON, C. X, dissenting, that the suit being one in equity, with all the incidents attaching thereto, the Legislature cannot control the judgment.
    Appeal from Phelps Circuit Court. — -Hon. L. B. Woodside, Judge.
    Reversed and remanded {with directions).

      Holmes <& Holmes and Watson & Livingston for appellants.
    (1) The sale of the land in question having been made at a private sale for less than three-fourths of its appraised value, the probate court had no power to approve said sale, and the same was absolutely void. Secs. 432 and 433, R. S. 1909; Carder v. Culbertson, 100 Mo. 269. (2) The sale made in this case was not based upon any valid order of the probate court. Even if the original order was valid at the time it was made, it would not' constitute a valid order to sell the real estate three years thereafter, unless it had been renewed from time to time, so that it could remain in force and effect. Sec. 433, R. S. 1909. (3) The petition of the guardian asking for the sale of the land in question was insufficient to confer jurisdiction upon the'probate court. Sec. 430, R. S. 1909.

      W. D. Jones and Lorts & Breuer for respondents.
    (1) The sale of the land belonging to these minors having been made upon an order of the probate court, a report of the sale filed with said court, and the sale approved by the probate court, the sale was valid, and passed the title of said minors. The sale of real estate under an order of the probate court is a judicial sale if approved, aud if the court had jurisdiction over the subject-matter and the parties, its approval and confirmation cures all prior irregularities, if any. Blickensderffer v.- Hanna, 231 Mo. 93. (2) The filing of the petition in the probate court asking for an order of sale gave the court jurisdiction over the land, and while the order and judgment approving the sale may have been erroneous, nevertheless the court had jurisdiction to make the order, and not having been appealed from, it became a valid, final judgment, and cannot be questioned in this collateral proceeding. Smith v. Black, 231 Mo. 692. (3) An order approving the sale of real estate by the probate court is a judgment, and the same validity is accorded.to the judgment of the probate court as is accorded to judgments of the courts of general jurisdiction, and for that reason the order approving the sale cannot be questioned in this collateral proceeding. Camden v. Plain, 91 Mo. 117. (4) Sales of real estate of minors are conducted in the same manner and the same proceedings had with reference thereto, as in cases of real estate of deceased persons for the payment of debts, .except there shall be no publication to parties in interest before making the order. Sec. 431, R. S. 1909. (5) It is well settled in this State that the final judgment of the probate court in matters within its jurisdiction are as conclusive as are the judgments of courts of general jurisdiction, and the court having rendered a judgment in the nature of an order to sell the real estate belonging to minors, the guardian and curator had a right to sell said real estate in compliance with said judgment, even if it was not sold at the nest term of court after the judgment was rendered. The judgment of the probate court erroneously rendered in allowing claims against the estate and directing the sale of real estate to pay the same, is a final judgment, and cannot be- collaterally attacked, but it is subject to impeachment in a direct proceeding for that purpose on two grounds only, namely: 'Lack of jurisdiction, or fraud in procuring it. Covington v. Chamblin, 156 Mo. 574.
   GRAVES, J.

The respondents made a very fair statement of the pleadings thus:

“This was a suit filed by Fred Miller as plaintiff against Thomas Staggs, ¥m. T. Furse and I. Dodson, defendants, to try title and in ejectment for Lot 6, Block 3, in Powell’s Addition to the Village of New-burg, Missouri. The defendant, Thomas Staggs, filed an answer admitting that he claimed the title to said real estate, and that he was in possession of the same, and denied that the plaintiff had any interest in said property, and averred that he purchased said property from Mrs. J. C. Todd for a valuable consideration, and received a warranty deed to the same, and prayed the court for a decree vesting the title to said property in him. The defendant, ¥m. T. Furse, filed an answer in the nature of a general denial to both counts in the petition, and the defendant, I. Dodson, filed an answer denying the allegation in both counts, and admitting that he was in possession of the property as tenant of Thomas Staggs.
“Fred Miller, the plaintiff, and his sister, Alma Miller, were the only heirs at law of John Miller, deceased, who died intestate, seized and possessed of the real.estate above described, and Fred Miller, the plaintiff, had before the institution of the suit purchased the interest of his sister, Alma Miller, in the above described real estate.
“The court, after hearing the testimony of both plaintiff and defendant, found the issues for the defendant Thomas Staggs, and decreed the fee simple title to said real estate to be in the said defendant.
“Fred Miller, the appellant,.having died since the appeal was taken, Sadie E. Miller, widow of Fred Miller, in behalf of Maude Miller and Fred Miller, Jr., minors and only heirs of Fred Miller, deceased, and as guardian of said minor heirs of the said Fred Miller,. by leave of this court, made on the-day of December, 1914, is prosecuting this appeal as substitute appellant.
“John Miller, deceased, was the common source of title under which plaintiff and defendant claim.
“Defendant Staggs claims title through J. C. Todd, who purchased said property under a guardian’s sale from Wesley Woolsey as guardian of Fred Miller and Alma Miller, said guardian’s deed being dated November 24th, 1903.”

The whole case turns upon the validity of the sale in the probate court and the deed made thereunder. The abstract of record before us shows an order of sale, dated “Aug. 31, 1900.” The guardian’s report of sale bears date of “Nov. 24,1903,” and it avers that the land was appraised at $175 and sold to J. C. Todd for $120, and that such sale was made in obedience to an order of -the court made at the August term, 1900. To this report of sale there would seem to be attached an appraisement, dated September 1, 1903, in which the land was appraised at $125. Sale was approved November 24, 1903, and deed ordered. The guardian’s deed introduced in evidence, recites an order of sale at the August term of 1903 of the probate court, and further recites that the land was appraised at $175, and sold to J. C. Todd for $120. In the record, we also find another report of sale purporting to be at the November (1903) term of the probate court which, recites that the order of sale was made at the August term, 1900; that the laud was appraised at $175 aud sold to J. C. Todd for $120. In connection with this plaintiff offered what they call the “original appraisement” which on material parts reads:

Appraisement of all real estate belonging to the estate of Alma and Fred Miller, minors, late of Phelps county, Missouri, produced before the undersigned, F. L. Kitchell, S. A. Roach and W. D. Rodman, appraisers, duly qualified this first day of September, 1903.
• Appraised Value.
Dollars. Cents.
DESCRIPTION OF PROPERTY.
One house and lot in being lot No........in
Block No............in Powell’s Addition to
the Town of Newburg, Phelps county, Mo... .$ 175.00
Total amount of appraisement..........$ 175.00
We, the undersigned appraisers, certify the above to be a full and fair appraisement of the real estate of John Miller, deceased, as produced before us by Wesley Woolsey, Admin- ' istrator of said estate of John Miller, deceased.
Given under our hands this 1st day of September, A. D. 1903.
F. Li. KkTCHELL,
S. A. Roach,
W. D. Rodman,
Appraisers.

The other appraisement was introduced by defendants, and reads:

Appraisement of all the real estate belonging to the estate of Fred and Alma Miller, under the age of 16 years, of Phelps county, Missouri, produced before the undersigned, Scot Roach, F. Li. Kitchell and W. D. Rodman, appraisers duly qualified this 1st day of September, 1903, by Wesley Woolsey, Guardian of said minors.
DESCRIPTION OF PROPERTY.
Lot six (6), of block three (3), Powell’s Addition to Village of Newburg, Missouri, One Hundred and Twenty-Five ($125) Dollars.
We, the undersigned appraisers certify that the above to be a full and fair appraisement of the real estate of Fred and Alma Miller, minors, as produced before us by Wesley Woolsey, guardian of said minors.
Given under our hands this 1st day of September, A. D. 1903.
Scot Roach,
F. L. Kitchell,
W. D. Rodman.

It should be noted that the two documents wind up differently. The one introduced by defendant says that the real-estate appraised was that owned by Fred and Alma Miller, whereas the other says “appraisement of the real-estate of John Miller, deceased, as produced by Wesley Woolsey, Administrator,” etc.

The trial court found for the defendant, and of necessity held the deed made by the guardian good, notwithstanding the' fact that it showed upon the face thereof that the land was sold at less than three-fourths of its appraised value.

According to the ruling in Smith v. Black, 231 Mo. 681, the fact that the land was sold at less than three-fourths of its appraised value, does not vitiate the sale, if such sale is approved by the court. Woodson, J., who wrote that case said:

“The second insistence of counsel for appellant presents a more serious proposition, to-wit: That the sale is void for the reason that the administrator sold the land in question at private sale for a sum less than three-fourths of its appraised value, in violation of section 166, Revised Statutes 1879. That section, so far as material, reads: ‘No real estate sold for the payment of debts shall be sold at private sale for less than three-fourths of its appraised value. ’
“This question has never been directly passed upon by this court, or by either of the courts of appeal, so far as I have been able to ascertain. We must, therefore, approach it more upon principle than from authority.”

As indicated above Division One reached the conclusion that the approval of the sale made it good, and that such approval was not subject to attack in a collateral proceeding.

Judge Woodson evidently overlooked the case of Carder v. Culbertson, 100 Mo. 269. In that case the exact question in the case at bar was up for consideration. In the Smith case it was an administrator’s sale, whilst in the Carder case it was a guardian’s sale. The two statutes, however, are so near alike that the same rule should apply. In the Carder case, at p. 272, Sherwood, J., said:

“By stipulation filed it is agreed that the sole question to be determined is whether the curator’s.deed is valid. There can be no hesitation on this point; it is a plain matter of statutory provision. Sections 28, 29 and 30, page 469, General Statutes 1865, control this case.
“The last-named section declares: ‘No real estate of any minor, sold under the provisions of this chapter, shall be sold for less than three-fourths of its appraised value, ’ etc. The probate court had no jurisdiction to approve such a sale. Its order of approval was, therefore, coram non judice, and the deed showing the facts already recited was void on its face.”

The Carder case was an opinion by the full court, whilst the Smith case is one by one division of the court only.

jit should be added that in a subsequent case involving the sale of swamp lands Judge Woodson gave expression to views adverse to the language quoted from Smith v. Black, 231 Mo. 681, supra. We have re-examined the question and all agree that the rule announcd by Sherwood, J., in Carder v. Culbertson, 100 Mo. 629, is the proper rule, and under the ruling in that case the judgment nisi should be reversed. The case of Smith v. Black, 231 Mo. 681, supra, in so far as it announces a rule contrary to the rule in Carder v. Culbertson, upon the validity of the deed involved, is overruled, and the judgment of the circuit court in this case is reversed.

All concur.

PER CURIAM: We are asked to modify our judgment of a simple reversal, and this we think should be done under all the facts. • The petition contains two counts, one under section 2535, Revised Statutes 1909, and the other in ejectment. It is admitted that the monthly rents and profits are and have been since date of ouster, July 2,1911, the sum of $6.50 per month. It is admitted that defendants have no title if the deed discussed in the principal opinion was not good. Under these facts we should reverse the judgment nisi, and remand the ease with directions to enter judgment for plaintiff on both counts of the petition. On the count to quiet title the plaintiff should have judgment quieting title in them. On the ejectment count they should have judgment for possession, with monthly rents and profits of $6.50 per month from July 2, 1911. The motion to modify our opinion is therefore sustained and the opinion is modified and judgment directed as above.

All concur, except Woodson, C. J., who dissents.

WOODSON, C. J.

(dissenting). — I dissent from the Per Curiam opinion: first, because when it is said that the case is here tried as an equity case it includes all the incidents thereto, without specially mentioning them; and, second, because this being an equity cause, this court is not bound by any legislation which prescribes the judgment it shall enter. If the Legislature can control the judgment, then the cause is not tried by a court of equity only in name, and the whole proceeding must therefore yield to the statutory judgment to be entered, which" would destroy its character as an equitable proceeding.


author: WALKER, J. GRAVES, J.

text:
    CITY OF MOBERLY v. JULIUS H. LOTTER et al., Plaintiffs in Error.
    In Banc,
    December 22, 1915.
    1. APPELLATE JURISDICTION: Title to Real Estate: Condemnation: Easement. A suit by a city to condemn private land for sewer purposes involves title to real estate. Even though a cursory view may suggest that only the easement and not' the fee is affected, yet it remains true that, though the fee remain in the owner, his right to the use and exclusive possession of the land is either lessened or taken away, and as a consequence the title is affected to the extent of the injury.
    2. -: -: Writ of Error Issued By Court of Appeals: Transfer to Supreme Court. After a writ of error has been timely and properly sued out in a court of appeals in a case of which such court does not have appellate jurisdiction (in this case, because it involves title to real estate), that court has power to transfer the case to the Supreme Court, which will take jurisdiction in the same manner as it would had an appeal in the case been erroneously certified by the trial court to the Court of Appeals and by that court transferred to this court. [Graves, X, and Woodson, C. X, dissenting.]
    3. -: -: -: Constitutional Limitations and Statute. The definitions of the exclusive appellate jurisdiction of the Supreme Court and the courts of appeals contained in the Constitution and the limitation upon the right of either to issue ■ writs of error to cases reviewable by it, must be construed in connection with the power given by the Constitution (Section 6 of Amendment of 1884 to Article 6) to the General Assembly to provide by legislation for the transfer of cases from the one court to the other, and that has been done by Section 3938, Revised Statutes 1909, directing the course to be pursued in case the writ is sued out in a court not having appellate jurisdiction. The authority conferred by this statute is not an exercise of jurisdiction, but of a power to determine whether or not jurisdiction exists, and in its absence, as determined by the court, to transfer the case to the court invested with power to review it. The constitutional provision defining the exclusive appellate jurisdiction of the Supreme Court and the courts of appeals applies as well to writs of error as to appeals.
    4. -: -: -: New Suit. The fact that the writ of error, by which the case was lodged in the Court of Appeals, is a new suit, does not determine the right of that court to transfer the case to the Supreme Court. The writ of error is to be held a new suit only to the extent of determining whether there is a Us pendens between the rendition of the judgment in the trial court and the suing out of the writ.

      Held, by GRAVES, X, dissenting, with whom WOODSON, C. X, concurs, that the suing out of a writ of error is the beginning of a new suit, and a court of appeals can institute no new suit in a case involving title to real estate, and is without jurisdiction to even take the preliminary step in such a suit; and being without jurisdiction in such case to issue a writ of error, but its issuance being coram
      non judice, it can confer no jurisdiction upon the Supreme Court by a transfer of the case — the issuance of the writ being its own mistake, and not that of the circuit court, which may certify an appeal already taken to the wrong appellate court.
    5. -: -: -: -: Applicability to Original Writs. Cases involving remedial writs reviewable only in the Supreme Court are not- within the purview of Section 3938, Revised Statutes 1909, which by its terms is confined to appeals and writs of error. Any one of such writs, if improvidently sued out of a court of appeals, should be dismissed, because the court has no constitutional power to consider it.
    6. APPELLATE PRACTICE: Writ of Error: No Bill of Exceptions. If there is no bill of exceptions or motion for new trial, a writ of error preserves only the record proper for review.
    7. -: Record Proper: Admission in Abstract. An admission by plaintiffs in error in a condemnation case that the petition contains a detailed description of the lands owned by them and of the parts to be taken, and asserting that for that reason the description is not set out, authorizes a holding that the lands to be taken are described with sufficient certainty.
    8. CONDEMNATION: Taking of Fee. Statutes authorizing the fee of land taken for a public sewer to be vested by the judg-t ment in the city, violate no constitutional provision.
    Error to Macon-Circuit Court. — Eon. Nat M. Shelton, Judge.
    Affirmed.

      Warrick McCanne and A. Doneghy for plaintiffs in error.
    (1) The circuit court never acquired jurisdiction over the property of any of the defendants, which would warrant it in appointing commissioners. The statute provides as a condition precedent that before the commissioners shall be appointed, and before any sewers can be constructed that the council, by ordinance, define the district. R. S. 1909, secs. 924.1, 9262. The description in the ordinance creating the sewer district, to-wit: “thence west on the center line of Logan street to the east line of tract No. 96, thence north on the east line of tract No. 96,” does not describe any land dr monument with certainty. It does not give the number of feet or distance to the east line of tract No. 96, and does not give the name of the owner ' of said tract, nor the State, county; city or town in which it may be found, and does not refer to any existing matter, map or deed from which the description can be made certain. Fox v. Courtney, 111 Mo. 147; State ex rel. v. Burroughs, 174 Mo. 707; O’Day v. Me-. Daniel, 181 Mo. 534; Brewington v. Jones, 85 Mo. 60; Whaley v: Henchman, 22 Mo. App. 486; Mason v. Small, 130 Mo. App. 249; Plain v. Burton, 118 Mo. App. 577; Beckman v. Mepkam, 97 Mo. App. 164; Weil • v. Willard, 55 Mo. App. 378; Lamm v. Danville, 77 N. E. 423; Law of Real Property Conveyance, Jones, 285, sec. 339. The petition does not state facts sufficient to constitute a cause of action; the ambiguity, in description, is patent on the face of the ordinances, petition and publication, and they are therefore void, and cannot be helped by parol. O’Day v. McDaniels, 181 Mo. 534; 1 Am. & Eng. Ency. Law, p. 529; Campbell v. Johnson, 44 Mo. 332; Davis v. Davis, 8 Mo. 56; Mudd v. Dillon, 166 Mo. 110;'Law of Real Property, Jones, p. 281, sec. 337; Lamm v. Danville, 77 N. E. 423. Title to real estate is not involved in this case for the simple reason that all that is acquired by the city and all that is parted with by the property owner is personal property and not real estate. The right acquired is an easement which all courts at all times have defined to be an incorporeal hereditament; a chattel interest pure and simple; a right issuing out of land less than a freehold; personal property, nothing more or less. A chattel real, it is true, but, nevertheless, personal property carved from the land; an interest that lies in grant and not in livery of seizin. 1Ó Am. & Eng. Eiicy. Law (2 Ed.), 399; Orchard v. Wright Co., 225 Mo. 414; Springfield Co. v. Schweitzer, 151 S. W. 129; 3 Am. & Eng. Ency. Law (1 Ed.), 164; Bouvier, Law Die., Title, Easements; Bonvier, Law Die., Title, Incorporeal. In the instant case the easement acquired by the -city "and the servitude imposed on the land is of a base character. The title, reversion, possession and use of the land (subject only to the right of the city to enter and lay its sewer pipe according to the plans and specifications named in the condemnation proceedings, and the right to thereafter enter, during the life of the easement, for the purpose of making necessary repairs, etc.), is all in the property owner. A servitude or incumbrance which would not be a breach of covenants of seizen in case of a deed made covenanting that the grantor was seized of the land. Kellogg v. Malin, 50 Mo. 496. The right acquired by the city is not an interest in the land but a mere easement which conflicts not in the slightest degree with the absolute proprietorship of the owner. Snyder v. Warford, 11 Mo. 514; Railroad v. Clark, 121 Mo. 180; Kellogg v. Malin, 50 Mo. 499. The owner can build on the land, pasture it or cultivate it so long as he does not interfere with the right to lay and repair the sewer. Mullins v. Metropolitan Co., 126 Mo. App. 507; 10 Am. & Eng. Ency. Law (2 Ed.), p. 429; Belcher Co. v. St. Louis Co., 82 Mo. 125. And, if the interest acquired is1 personal property and not real estate then the title to real estate is not involved and the jurisdiction is in the Court of Appeals. Constitution, art. 6, sec. 12. Any interest in land, less than a freehold, is personal property. Orchard v. Wright Co., 225 Mo. 414; Springfield Co. v. Schweitzer, 151 S. W. 129; Schouler’s P'ersonal Property, pp. 28, 29, 45; 1 Washburn, Real Property (3 Ed.), pp. 15., 22.

      J. Elmer Ball, Arthur B. Chamier and Willard P. Gave for defendant in error.
    (1) The judgment is regular upon its face, and there being no testimony preserved in a bill of exceptions all the legal presumptions are in favor of its regularity, and it should be affirmed. 3 Cyc. 275; Riggins v. O’Bx'ien, 34 Mo. App. 613; State v. Dugan, 110 Mo. 145; State v. Mackin, 51 Mo. App. 309; State v. McCoy, 162 Mo. 382..(2) It is not even necessary to define the limits within which private property shall be assessed to pay for such improvements, where the city elects to pay the damages out of any funds available in the city treasury, as is done in this case. Sec. 9273, R. S. 1909. (3) The judgment in this case is in accordance with the report of the commissioners, and follows the language of Sec. 9271, R. S. 1909, and the use of the words “in fee” can be treated as mere surplusage, as the entire judgment shows the purposes and objects for which the real estate was taken were for public use. See. 21, art. 2, Constitution. (4) Condemnation proceedings of real estate for public purposes involve the title to land, and the Supreme Court has exclusive appellate jurisdiction therein. State ex rel. v. Rombauer, 124 Mo. 598; Miller v. Railroad, 162 Mo. 424; Baubie v. Ossman, 142 Mo. 499; Tarkio v. Clark, 186 Mo. 285; Kansas City v. Railroad, 187 Mo. 151; State ex rel. v. McCutchan, 119 Mo. App. 69. (5) “A writ of error is an original suit and not a mere continuation of a former suit.” Macklin v. Allenberg, 100 Mo. 337; Kelmel v. Nine, 121 Mo. App. 718; 6 Am. & Eng. Ency. Law (1 Ed.), p. 812; Bank v. Jenkins, 104 111. 143; 2 Cyc. 510; Widber v. Superior Court, 94 Cal. 430. (6) “It [the Legislature] caxxnot impair the appellate or original power of the Supreme Court given by the Constitution.” 7 Lawson’s Rights, Remedies and Practice, par. 3783. Section 5, of the Constitutional Amendment of 1884, provides that: “In all causes or proceedings reviewable by the Supreme Court, writs of error shall run directly to the circuit courts, ’ ’ and that the Supreme Court shall have exclusive jurisdiction of such writs of error. (7) Section 3 of the Amendment of 1884 to the Constitution does not give authority to the Legislature to enact any laws vesting the court of appeals with jurisdiction, where same is denied by the Constitution itself. (8) The Legislature cannot by its act (See. 3938, R. S. 1909) give validity to a void writ of error issued by a court of appeals improvidently, where such court of appeals had no jurisdiction over the subject-matter. Section 5 of the Amendment of 1884 to Constitution. (9) The act of the clerk of the Kansas City Court of Appeals in issuing a writ of error to the Macon Circuit Court, was a nullity, because said Court of Appeals had no jurisdiction over the subject-matter of the action. Sec. 12, art. 6, Constitution; Kelmel v. Nine, 121 Mo. App. 720. “A writ of error will not lie in condemnation proceedings, brought before a circuit judge in vacation, as such proceedings are not according to the course of the common law.” Railroad v. Morton, 20 Mo. 70; Lewis on Eminent Domain, sec. 806; Sweeney v. Tel. Co., 212 111. 475; Dorchester v. Wentworth, 31 N. H. 451; Edrington v. Nix, 49 Mo. 132.
   WALKER, J.

This is a proceeding to condemn for sewer purposes certain lands of plaintiffs in error in the city of Moberly. A change of venue was granted to the circuit court of Macon county, where, upon a hearing, a judgment was rendered for the defendant in error on the 11th day of January, 1912. On the 2nd day of December, 1912, a writ of error was sued out in the Kansas City Court of Appeals and in compliance with the order of said court a copy of the final .judgment in the cause was filed therein. Defendant in error thereupon filed a motion to quash the writ, alleging, among other things, that title to real estate was involved and that the .Supreme Court alone had jurisdiction. Whereupon the Court of Appeals ordered the cause transferred- to the Supreme Court. Defendant in error then filed in this court a motion to dismiss the cause, alleging that title to real estate was involved and hence the Court of Appeals had no authority to issue the writ of error by which the case was brought to that court; and, more than a year having elapsed since the final judgment and no writ having been sued out in the Supreme Court, that plaintiffs in error were not entitled to a review of the proceedings here. The motion was ordered to be considered with the case.

Is title to real estate involved in the determination of this case ?

It is held that the condemnation of land for a right of way of a railroad or for a highway so affects the title to real estate as to bring that class of cases upon appeal within the jurisdiction of the Supreme Court.

A cursory view may lead to the conclusion that in this class of cases only the easement and not the fee i§ affected; but while the fee remains in the owners, their right to the use and exclusive possession of the lands in either lessened or taken away, and as a consequence the title is affected to the extent of the injury inflicted. A condemnation of lands for a public sewer may not, after the work is completed, affect the owner’s interest therein to the same extent as in the class of cases mentioned, but the injury is of a like character, differing only in degree and sufficiently interferes Avith the owner’s proprietary rights to authorize the holding that the title to the land is involved. Railroad v. Wyatt, 223 Mo. l. c. 351; Baubie v. Ossman, 142 Mo. l. c. 502, and Railroad v. Schweitzer, 246 Mo. l. c. 128, are types of cases sustaining this conclusion.

Was the Kansas City Court of Appeals without jurisdiction in this proceeding and hence its transfer of this case to the Supreme Court a x nullity? . It is contended, although the writ was timely sued out, that the latter court acquired no jurisdiction by reason of such transfer. It i« elementary that a writ of error is a writ of right and that it issues as of course upon the filing of a formal application therefor. [Smith v. Moseley, 234 Mo. l. c. 491; Sec. 2054, R. S. 1909.] While the proceeding to obtain the writ, is in the nature of a new action (Turner v. Eidmonston, 210 Mo. 411), its purpose as here invoked and as usually employed under our procedure is to set aside the judgment in the principal case. That this is its primary purpose is shown by the fact that the right to the writ or to an appeal is allowed in the same action at the option of the party. [Art. 16, chap. 21, R. S. 1909.] As thus employed it has been subjected to statutory regulation, not only as to the time within which it may issue, but who may join therein, the procedure necessary to be followed, what parties are affected and how (Secs. 2056-2078, R. S. 1909), and the course to be pursued if the writ is sued out in a court not having jurisdiction of the principal case. [Sec. 3938, R. S. 1909.]

The'Constitution clearly defines the exclusive appellate jurisdiction of the Supreme Court and the Courts of Appeals, the one by express declaration (Sec. 12, art. 6 and Sec. 5, Amendment 1884 to Art. 6, Constitution) and the other by implication or a process of exclusion applied to the declaration as to the jurisdiction of the Supreme Court authorized by the established rules of construction. [State ex rel. v. Rombauer, 101 Mo. 499; Langston v. So. Ry. Co., 66 Mo. App. 73; State ex rel. v. Allen, 45 Mo. App. 551.] These definitions limit the right of the respective courts to issue writs of error to cases reviewable in each. Concerning this matter there need be no controversy, because the language is explicit. But these limitations must be construed in connection with the power given by the Constitution (Sec. 3, Amendment 1884 to Art. 6, Constitution) to the General Assembly to provide by legislation for the transfer of cases from the Supreme Court to- the courts of appeals or vice versa, as has been done by the enactment of section 3938, supra. The authority conferred by this section is not an exercise of jurisdiction, but of a power to determine whether or not jurisdiction exists, and in its absence, as determined by the court, to transfer the case to the coui't invested with power to review and determine same, or, as was said in substance in In Re Garesche, 85 Mo. l. c. 471, it is the extension of the power of the court “to cases which for some reason get to one court when they should be in another.”

The recognition in In Re Garesche, supra, of this power of transfer under the Constitution, is approved in Schuster v. Weiss, 114 Mo. l. c. 172), and in Carmody v. Transit Company, 188 Mo. l. c. 575, where this court, after announcing that it had upon an investigation of the record, no other power, ordered the case transferred to the St. Louis Court of Appeals. In Rourke v. Holmes St. Ry. Co., 257 Mo. l. c. 569, this court, speaking through Bond, J., held that the power of the Legislature to pass an act providing for the transfer of cases from the Courts of Appeals to the Supreme Court is sustained solely on the ground of specific constitutional authority. This case further holds that the constitutional provision authorizing transfers is of continuing force and governs the disposition of cases not submitted when subsequent statutory changes were made under the authority of the Constitution in relation to the relative jurisdictions of the Supreme Court and the courts of appeals.

A statute of Louisiana similar in all of its material features to section 3938, supra, is apposite. In construing a statute authorizing the transfer of cases from the Supreme Court to a court of appeals of that State, the Supreme Court said, in substance: The court first determines whether the appeal has been properly brought up; and having found that there is an appeal to be dealt with it proceeds to determine whether the court has jurisdiction of it; if it finds that it has not, it dismisses the case, or, under the statute, transfers it to the appropriate court. We see in this transfer no greater exercise of jurisdiction than would be required for a dismissal. The court necessarily has jurisdiction to determine whether the appeal has been brought up; that is, whether the steps for bringing it up have been properly taken. The motion, therefore, to dismiss is overruled, and the present appeal having been brought to this court instead of the court having jurisdiction, it is ordered that the case be transferred to the Court of Appeals of the Parish of Orleans. [Bolden v. Barnes, 118 La. 274.]

Like persuasive precedents might be cited from courts of last resort in other jurisdictions, sustaining statutes authorizing the transfer of cases from one appellate court to another under constitutions similar to our own. The decisive manner, however, in which this court has repeatedly ruled upon this subject as applied to the transfer of appeals, and no difference in principle existing to prevent the application of the rule to the transfer of writs of error, the further burdening of this opinion with the citation to and discussion of other cases is not necessary.

The correctness of the conclusion as to the right of transfer in the case at bar is not affected by the fact that the proceeding is based upon a writ of error instead of an appeal. The constitutional provision defining the exclusive appellate jurisdiction of the Supreme Court and the courts of appeals, applies as well to writs of error as to appeals, and the rule announced is therefore as applicable to one class of cases as the other.

Nor does the fact that a writ of error constitutes a new suit militate against the right to transfer the case at bar. A writ of error is held to be a new suit in determining whether there is a lis pendens between tlie rendition of the judgment in the principal case in the lower court and the suing out of the writ. The trend of authority in this regard being that after the rendition of the judgment below and before the suing out of the writ, a purchaser in good faith takes title free from the final determination of the writ of error. [Macklin v. Allenberg, 100 Mo. l. c. 342; Macklin v. Schmidt, 104 Mo. 361; Pierce v. Stinde, 11 Mo. App. l. c. 369; Mathewson v. Railroad, 44 Mo. App. 97.] Only to the extent above indicated may a writ of error properly be designated as a new' suit and thus contra-distinguished from an appeal which is a continuation of the original suit. In other respects, aside from the procedure necessary to obtain a writ of error, both classes of cases possess the same general characteristics, their purpose being to bring up the principal case to the appellate court for review.

Cases involving original remedial writs reviewable under the Constitution only in the Supreme Court are not within the purview of the statute (Sec. ¿[938, supra), which by its terms is confined to appeals and writs of error. For example, where a writ of mandamus has been sued out in a court of appeals and the relator in support of same pleads a constitutional question, the proceeding will be dismissed, because the court has no constitutional power to consider the same, nor statutory authority to transfer the case to the Supreme Court. [State ex rel. v. Southard, 61 Mo. App. 296.]

The consideration of cases illustrative of the superintending control of the Supreme Court in preventing the courts of appeals from exercising jurisdiction in cases reviewable only in the Supreme Court, has no place in the determination of the matter here at issue. The exercise of this power is frequent and its propriety is not questioned. While it may be invoked to prevent the improper issuance of original remedial writs, it is equally applicable to prevent any usurpation of jurisdiction. To illustrate: If the Kansas City Court of Appeals in the instant case, upon bqing apprised of the fact that title to real estate was involved, had not on its own motion transferred the case to the Supreme Court, the latter, in a proper proceeding, could have compelled such transfer.

From the foregoing it follows that the motion of defendant in error to dismiss this case must be overruled.

Dilatory matters having been disposed of, we find that not an exception was saved to any ruling of the trial court. There is no bill of exceptions or motion for a new trial or any reference to either. While the petition and the judgment, as parts of the record proper, are preserved, other matter, consisting principally of documentary evidence, has not been so preserved and presented as to authorize a review of same. Supplementing explicit statutes and the rules of this court based upon same, we have recently, in a number of well considered cases, defined the steps necessary to be taken to authorize the reviw of a case upon appeal or writ of error. [Coleman v. Roberts, 214 Mo. 634; Pennowfsky v. Coerver, 205 Mo. 135; Stark v. Zehnder, 204 Mo. l. c. 448; Harding v. Bedoll, 202 Mo. 625.] With these aids, a failure to so preserve the proceedings of the trial court as to insure a review of the same here, is inexcusable.

It is contended that the lands sought to be condemned are not described'with certainty; in addition to the description of same in the petition, which is sufficiently definite and comprehensive to meet the requirements of a proceeding of this character, we find this admission of plaintiffs in error in reg’ard thereto in the so-called abstract: “The petition contains a detailed description of the respective lands owned by each defendant from which said right of way for a sewer was to be carved, as well as a detailed description of tbe part to.be carved from each tract for said sewer route, all of which is omitted because it would unnecessarily encumber the record.” If the petition itself, as preserved in the record, did not contain a sufficient description, this admission would authorize us in determining that it conforms to the rules of good pleading in cases of this character.

The judgment is based upon this petition and conforms to the requirements of the statute (Sec. 9271, R. S. 1909) defining the course to be pursued by a city of the class here under consideration to enable it to acquire title to private land for public purposes.

The Legislature has authorized, in condemnation, proceedings of this character by cities of the third class, that the owners be divested of the fee in the lands taken (Sec. 9271, supra). The judgment rendered herein was in conformity with this statute. A difference of opinion may exist as to the wisdom of statutes of this character when .applied to the taking of lands by cities for rights of way, as in the instant case; but they violate no constitutional provision, our organic law in this regard being limited to the taking.of railroad tracks. [Sec. 21, art. 2, Constitution.] The ex-” tent of the power of condemnation of private property for public use being left to the discretion of the Legislature (Union Depot Co. v. Frederick, 117 Mo. l. c. 165; Boyce v. Mo. Pac. Ry. Co., 168 Mo. l. c. 590), the validity of the-judgment, so far as concerns the interest taken, is not to be questioned.

From all of which it follows that the judgment of the trial court, should be affirmed and it is so ordered.

All concur except Graves, J., who dissents in separate opinion in which Woodson, C. J., concurs.

GRAVES, J.

(dissenting). — This case brings to this court a new question, and one which cannot be lightly brushed aside. It stands conceded, or if not conceded, in fairness it must he conceded, that in the trial in the circuit court the question of title to real estate was so involved as to make the case appealable to this court. In other words, upon the record made nisi, the Court of Appeals would have no jurisdiction. This state of facts I consider conceded by the opinion of my learned brother Walker. In this situation, the aggrieved party sued out a writ of error in the Kansas City Court of Appeals. That the said court had no jurisdiction of an appeal in the same case stands conceded. The defendant, however, instead of appealing to the Kansas City Court of Appeals, in a case where such court had no jurisdiction whatever, sued out in such court a writ of error. When such writ of error came on for hearing the court discovered its want of jurisdiction and certified the case here.

The question is, Can a court of appeals issue a writ of error in a case over which it has no jurisdiction absolutely, and then certify such case to this court, and thereby confer jurisdiction here? We say no, and in this we are forced to dissent to the opinion filed. If the case was one not cognizable by the Court of Appeals, that court can confer no jurisdiction upon this court by certifying it here. In a case of this kind our jurisdiction is dependent upon the jurisdiction nisi. It has long been ruled in Missouri that the suing out of a writ of error is the beginning of a new suit. A citation of the cases would he useless labor. To upset this fixed doctrine is a question of vital importance. Too many property rights are fixed upon this rule. It must be conceded that the Court of Appeals can institute no new suit (for such is a writ of error) in a case where title to real estate is involved. They are without jurisdiction to even take the preliminary step in such a suit. If they do institute such a suit (as they did in this case) then their action is coram non judice, and void. No certificate from them can give this court jurisdiction. We might have had jurisdiction in the first instance, but by no legal analogy can we receive jurisdiction from a court which had no jurisdiction whatever. This question has too often been brought out in cases going from probate or county courts to the circuit courts.

If the Court of Appeals issued a writ of error in a case, over the subject-matter of which it had no jurisdiction, no law of this State gives us jurisdiction upon a certificate of jurisdiction from that court. We can only say, You issued an original process in a case over which you could not entertain jurisdiction, and your certificate of transfer to this court can give us no more jurisdiction than you had. It does not fall within the line of cases that you may certify here. If a case comes to your court from the circuit court which has been wrongly sent by that court to your court, then under the Constitution you can certify that case to this court. Your power to certify is expressly given. It comes from the Constitution. But that case is not this case, or any part thereof. In the case at bar you issued a writ wherein you had no right to issue one. It is your mistake and not that of a circuit court.

The Constitution provides for error upon the part of the circuit court and authorizes the Court of Appeals to transfer. That authority can not be extended (without renovating the Constitution, and courts are not engaged in that business) to cases where jurisdiction of the Court of Appeals is dependent upon steps of its own initiation rather than erroneous orders of the circuit court. Until the Constitution is rewritten we have no jurisdiction of the instant case. For these reasons, hurriedly expressed, I dissent.

Woodson, G. J.. concurs in these views.


author: WOODSON, J.

text:
    IN RE ESTATE OF JOSEPHINE BRINCKWIRTH v. HARRY TROLL, Public Administrator, Appellant.
    Division One,
    January 4, 1916.
    1. PUBLIC ADMINISTRATOR: Power to Take Charge of Estate. The mere fact that a public administrator takes charge of an estate by filing notice in the office of the clerk of the probate court gives him no greater authority or a more secure right to administer it than he would have were he appointed by the probate court, and no greater authority or right to administer the estate than any other person appointed administrator by the probate court would have.
    2. -: Probate of Will: After Filing of Notice. Upon the discovery and probate of a will of deceased after the filing by the public administrator with the clerk of the probate court of notice that he has taken charge of the estate, all his authority and right to administer the estate ceases ipso facto and by operation of law; and an order of the probate court vacating the authority assumed by him to act is useless and unnecessary, but one appointing another suitable person administrator with the will annexed is valid. There is no reason why the statute (Sec. 47, R. S. 1909) declaring that “if, after letters of administration are granted, a will of the deceased be found, and probate thereof granted, the letters shall be revoked, and letters testamentary, or of administration, with the will annexed, shall be granted” should not apply to a public administrator who takes charge of an estate under section .305.
    3. -: -: Notice of Vacation of Assumed Authority. The order of the probate court revoking the authority of the public administrator to administer an estate, made after the discovery and probate of decedent’s will, is not void on the theory that he was entitled to notice of the court’s intention to make the order, for two reasons: first, because, having before the discovery and probate of the will, filed his notice with the clerk of the probate court that he had taken charge of the estate, he was already in court, and is required by law to take notice of all papers, documents, etc., filed in the case, except where actual notice is required by statute; and, second, because he had no vested right, as public administrator, to a hearing, his assumption to act being conditional upon the discovery and probate of the will, and upon that condition happening his right to further administer the estate ipso facto ceased, without any order of revocation.

      4. ADMINISTRATION: Priority: Discretion of Court. Notwithstanding the provisions of section 15, Revised Statutes 1909, naming certain persons entitled to priority.to administer estates, upon the discovery and probate of a will which names no one as executor, the probate court may, in the exercise of its sound discretion, and in the face of certain circumstances named in the statute, appoint the public administrator, administrator with the will annexed; but it is not compelled to appoint- him, and, , if some one else is appointed, no statutory right of his is violated.
    Appeal from St. Louis City Circuit Court. — Hon. Irvin B. Barth, ■ Judge.
    Affirmed.

      Marshall & Henderson for appellant.
    (1) An order of the probate court is not necessary for the public administrator to take charge of an estate. When he files his notice his act is independent of the probate court. The filing of notice' in the office of the clerk of the probate court is sufficient to vest him with administration and he is not required to set out or prove facts which give him a right to administer. His relation to the estate thereafter is the same* as if' he had taken charge under order of the probate court. Vermillion v. LeClare, 89 Mo. App. 55; Leeper v. Taylor, 111 Mo. 312; In re Hill, 102 Mo. App. 620; Tittman v. Edwards, 27 Mo. App, 495. (2) Where an executor is disqualified or renounced, administration is granted the same as if there were an intestacy. In the absence of heirs entitled to preference, the public administrator must he appointed. In re Garbér, 74 Cal. 338; In re Richardson’s Estate, 120 Cal. 344; Speckles v. Public Administrator, 1 Demarest’s Rep. (N. T.) 475; Anderson Committee v. Anderson/170 (Ky.) S. W. 213. (3) The right of the public administrator to administer as administrator with the will annexed is superior to the nominee of the next of kin disqualified to administer. In Matter of Blank, 2 Redf. Rep. 443. (4) The probate court may appoint the public administrator notwithstanding an expressed wish of deceased, or next of kin, for appointment of another. In re Morgan Estate, 53 Cal. 243; Estate of Hyde, 64 Cal. 228; Hen-dlee v. Cloud, 51 Mo. 301. (5) The public administrator has authority to take charge of an estate under the Missouri statutes, and he continues in charge until superseded by one having a superior right to administer. Car & Foundry Co. v. Anderson, 211 Fed. 301; Richardson v. Busch, 198 Mo. 175. (6) The public administrator has a right to continue administration upon an estate, notwithstanding the probate court had appointed some one else administrator and hád ordered him to turn over the estate to the administrator appointed. Warren v. Carter, 92 Mo. 288; State ex rel. v. Holman, 93 Mo. App. 611. (7) The public administrator is an officer within the purview of the Constitution. His authority to administer is a right conferred upon him by law. The Constitution provides that no person shall be deprived of property without due process of law. Due process of law is construed to be a reasonable notice and opportunity to be heard in defense of one’s rights. The right to exercise the office of public administrator in administering estates is a right which constitutionally cannot be taken away without notice and an opportunity to be heard in defense of his rights. This is a rule of law even where the statute fails to provide for notice. State ex rel. v. Holteamp, 245 Mo. '655; State ex rel. v. Walbriclge, 119 Mo. 383; State ex rel. v. Maroney, 191 Mo. 531; Hunt v. Searcy, 167 Mo. 170.

      Schnurmacher é Bassieur for respondents.
    If, after granting of letters of administration on the ground of intestacy, a will of the decedent be duly proved up and admitted to probate, the letters of administration are thereby revoked; or, at least, must be revoked and the powers of the administrator cease. Thomas v. Morrisett, 76 Ga. 384; Re Davis Estate, 11 Mont. 196; Dalrymple v. Gamble, 66 Md. 298; 1 Woerner’s Am. Law of Adm., sec. 268.
   WOODSON, J.

The statement of the facts of this ease is very brief and as well or better made by counsel for respondent than I can do, and for that reason I adopt it as my statement of the case, which is as follows:

This is an appeal from the judgment of the circuit court of the city of St. Louis, approving the action of the probate court of said city in vacating the authority of Harry Troll, then Public Administrator, and thereupon appointing John G. Grone and Henry Griesedieck, Jr., administrators, with the will annexed, of the estate of Josephine Brinckwirth, deceased.

■ Josephine Brinckwirth died March 29, 1911. She was a resident of the city of St. Louis at that time and left an estate which, it was admitted upon the trial, exceeds $200,000 in value. She was a widow and her heirs at law were three minor children. John G. Grone, one of the respondents, is a brother of the deceased, and Henry Griesedieck, Jr., the other respondent (who died pending this appeal), was a brother-in-law of the deceased.

On March 30, 1911, Harry Troll, as Public Administrator of the city of St. Louis, filed notice that hé took charge of the estate of said decedent, doing so on the supposition that she had died intestate.

On the next day, March 31, 1911, the will of Josephine Brinckwirth was presented for probate and was duly admitted to probate by the probate court of the city of St. Louis; and the will having been so admitted of probate, undér section 47, Revised Statutes 1909, the court vacated the authority assumed by the Public Administrator, and appointed Grone and Griesedieck as administrators, with the will annexed, and they duly qualified as such.

Thereupon the Public Administrator took an appeal to the circuit court. In that court a trial de novo was had, with the result that the circuit court took the same action which had been taken by the probate court, and refused to set aside the appointment of drone and G'riesedieck. After an unavailing motion for new trial, the Public Administrator brought the case here by appeal.

Section 47 of the Administration Act, above referred to, reads as follows:

“If, after letters of administration are granted, a will of the deceased be found, and probate thereof granted, the letters, shall be revoked, and letters testa^ mentary, or of administration, with the will annexed, shall be granted.”

There are but two legal propositions presented by this record for determination, and counsel for appellants present their side of the first ^be following language:

“An order of the probate court is not necessary for the Public Administrator to take charge of an estate. When he files his notice his act is independent of the probate court. The filing of notice in the office of the clerk of the probate court is sufficient to vest him with administration and he is not required to set out or prove facts which give him a right to administer. His relation to the estate thereafter is the same as if he had taken charge under -order of the probate court.
“The Public Administrator has authority to take charge of an estate under the Missouri statutes, and he continues in charge until superseded by one having a superior right to administer.”

In support of their position the following, authorities are cited: Vermillion v. LeClare, 89 Mo. App. 55, l. c. 60; Leeper v. Taylor, 111 Mo. 312; In re Estate of Hill, 102 Mo. App. l. c. 620 ;. Tittmann v. Edwards, 27 Mo. App. 495; American Car & Foundry Co. v. Anderson, 211 Fed. 301; Richardson v. Busch, 198 Mo. 174.

These cases, with the exception of the Hill case, substantially hold what is contended for by counsel for appellant; but notwithstanding the ruling there announced the mere fact that the Public Administrator took charge of the estate mentioned under section 305, Revised Statutes 1909, and undertook to administer it, certainly gave him no greater authority or more secure rights in that regard than he would have acquired had he been appointed by the probate court under section 9, Revised Statutes 1909.

That being true, then in my opinion, the position of counsel for appellant is not inconsistent with, nor does’ it militate in the least against the contention of counsel for respondent regarding this proposition, which is stated in this language:

“If, after granting of letters of administration on the ground of intestacy, a will of the deceased be duly proved and admitted to probate, the letters of administration are thereby revoked; or at least must be revoked and the powers of the administrator cease.”

This contention of counsel is precisely what section 47, Revised Statutes 1909, provides shall be done when the ordinary administrator is appointed, and subsequent thereto a will is discovered and duly admitted to probate.

This statute seems to he so clear in meaning that there can be no room for construction. However, similar statutes of other States have been before the courts of those States, which hold they mean just what they say. [Thomas v. Morrisett, 76 Ga. 384; Re Davis’ Estate, 11 Mont. 196; Dalrymple v. Gamble, 66 Md. 298; 1 Woerner’s American Law of Administration, sec. 268.]

And as previously stated, there is no rule or reason why this same statute should not also apply to a

Counsel for appellant next insist that the order of the probate court revoking the authority of the

public administrator who takes charge of an estate under said section 305. [State ex rel. v. Wilson, 216 Mo. 215; Tarkio Drainage District v. Richardson, 237 Mo. l. c. 64.]

This proposition is therefore ruled in favor of the respondent. Public Administrator to administer the estate was void because he was not notified of the court’s intention to make the order.

This insistence is clearly untenable, for two reasons: first, because he was in court all the time, and had to take notice of all papers, documents, etc., filed in the case where actual notice is not expressly required by statute.

In this case the will was filed, proved and duly probated; and there is no statute which in express terms or by necessary implication required appellant to be notified of said contemplated order.

The second reason why appellant was not entitled to such notice is because he had no vested right, as such Public Administrator, which entitled him to a hearing. TIis appointment, as such administrator, or rather his assumption of authority under the statute to act as such, was conditional, which depended upon the subsequent discovery and probate of the will referred to in said section 47; and when that contingency happened his right to further administer the estate under section 305 ceased ipso facto, and he could proceed no further therewith, for the obvious reason from that time on the estate had to be administered according to the terms of the will and not according to any statute, and before that could be done letters testamentary or of administration with the will annexed had to be issued by the probate court before anyone could lawfully proceed further with the administration.

While the probate court, in such a case, if not prohibited by sections 15 and 19, Revised Statutes 1909, the first providing for the priority of persons entitled to administer upon estates, and the second prescribing when letters testamentary with the will annexed shall be granted, the probate court may in its sound discretion issue letters of administration with the will annexed to the public administrator, yet there is no law which commands or reason which suggests that such should be done as a rule. In individual cases, under certain circumstances, the court might very justly select him instead of anyone else connected with the estate or the parties interested therein. But by no means does that follow as a matter of law. In such cases as this; and in all cases arising under said section 47, the probate court is at liberty to exercise its wise and sound discretion as to whom it will grant letters of administration with the will annexed, limited, of course, by the provisions of sections 15 and 19, before mentioned.

While the probate court of the city of St. Louis, as a matter of form, or probably for the purpose of making its record fair upon its face, made the useless order revoking the authority of the appellant to proceed further with the administration of the estate after the probate of the will, yet it is perfectly clear that no such order of revocation was necessary, for the reason before stated, that when the will was probated, then by operation of said section 47, his authority to further act ceased ipso facto. This being unquestionably true, as it seems to us, then it would be idle talk and illogical to contend that the appellant was entitled to notice of the court’s intention to make said formal order for the purpose of keeping its records fair.

In discussing the same question the Supreme Court of Montana, in the cáse of Re Davis’ Estate, supra, l. c. 213, said:

“While the law required inquiry to he made as to whether decedent left a will, and makes the right to grant letters of- general administration dependent on the fact that according to the proof obtainable decedent left no will [which is also the case in Missouri], it does not require that the court shall soloemnly determine by judgment that decedent died intestate. For the statute leaves the question open for the propounding of a will at any time, and the admission of a will to probate, ipso facto, supersedes and vacates the grant of letters of general administration.”

And in the ease of Thomas v. Morrisett, 76 Ga. 384, syl. 3, the Supreme Court of Georgia held that:

“No general administration upon an estate should have been granted in this State, where there was a will in existence which was afterwards proved and admitted to record; and if such administration has been granted in this State, and afterwards a will has been established, this would work a revocation, except as to such portions of the estate as had been fully administered prior to the production and probate of the will.”

In the last case cited a general administration had been granted and afterwards a will was produced which had been admitted to probate in the State of Alabama. This raised the question of the validity of the order granting said administration. At page 388 of its opinion the court says:

“Conceding to this judgment in our courts the full faith and credit to which it is entitled by the law and usage of the courts of Alabama, we agree with the superior court that no . general administration should have been granted on an estate when there was a will in existence, which was afterwards proved and admitted to record-. This is a well settled principle, recognized both by judicial decisions and text-writers. In Fields v. Carlton, decided at the last term of this court, 75 Ga. 554, we held that, where a will had been proved in this State, a grant of administration upon the estate was void, and to this effect was the decision of the Supreme Court of the United States in Griffith v. Frazier, 8 Cranch, 9, and to these many others might be added, but it would be unnecessary labor, as there is not an authority which questions the point there ruled. Applied to an administration granted before a will, which was afterwards established, was discovered, the same principle would work its revocation, except as to such portions of the estate as had been fully administered prior to its production and probate.”

The same ruling was announced by the Supreme Court of Maryland in the case of Dalrymple v. Gamble, 66 Md. 298. The facts in that case sufficiently appear in the first syllabus (7 Atl. 683), which reads as follows :

“Where, after the appointment in Maryland of an administrator upon the estate of a residént of California, a will, which named no executor, was established and probated in California, and a copy of it was filed in the orphans’ court in Maryland, which had granted administration, held, that that court had the power, in its discretion, to revoke the former letters of administration, and issue letters of administration cum testamento cmnexo, although the statute provides only for revocation of letters of administration by the issue of letters testamentary; and that such power was properly exercised without awaiting the result of a suit in equity brought by the heirs and next of kin, who claim that the devise made by the will was void, and did not operate upon .the Maryland property, to determine the effect of the will.”

Discussing the legal question presented, in its opinion, that court said:

“The questions for our decision may he divided into two. The first is whether when this duly certified copy of the will, probated in California, was filed, the letters before granted to Augustine [D'alrymple] were properly revoked. . . . The answer to the first question depends upon sections 36 and 327 of article 93 of the Code. Section 36 is explicit in saying that if a will is filed, and the executor therein named shall apply within thirty days after the filing for letters testamentary, they shall be granted, and the granting of such letters shall .operate as a revocation of letters of administration previously granted. Under those circumstances the orphans’ court would have no discretion in the matter. But the law is silent as to what shall be done when there is no executor named,- although a will is filed. This section 36 makes no distinction between a foreign and a domestic will, and we can see no reason why any distinction should be made; and when we take into consideration section 327, we think none should be made. The will in this case is a foreign will, and professes to dispose of all the personal property; but it appoints no executor, and it is not a case, therefore, where the orphans’ court are compelled to revoke. But the whole policy of our testamentary system is to commit administration to the hands of those most interested in the property. Had a will like the one in this case been filed before any administration had been granted, the orphans’ court would surely have granted letters c. t. a., but not the ordinary letters of administration. But the power of the orphans’ court to revoke letters improvidently granted is unquestioned. We can see no reason why that court should not have the discretion to revoke letters previously granted, and grant new letters c. t. a., upon the discovery of a will. . . . The power to administer justice would be seriously impaired if that court possessed no power or discretion to revoke letters that it had previously granted upon a mistaken state of facts.’

"While in the case of Tapley v. McPike, 50 Mo. 589, the question was whether or not the statute of itself, upon the probate of the will, revoked the former appointment of the administrator, or whether an order of court was necessary for that purpose; yet there the general effect of the statute was recognized and enforced in the same manner as those referred to in the cases cited.

For the reasons stated this proposition is decided against the appellant.

And for the same reason it would be equally illogical to contend or hold that the appellant would be entitled to an appeal from such a useless or formal order.

I am, therefore, clearly of the opinion that the judgment of the circuit court should be affirmed; and it is so ordered.

All concur; Bond, J., in paragraph one and the result.