ON MOTION FOR REHEARING. Respondent Wacker-Helderle Undertaking Livery Company has filed a motion for rehearing which is chiefly founded on the claim that our decision is in conflict with the opinion of the Supreme Court in Smith v. St. Louis Union Trust Co., 340 Mo. 979,104 S.W.2d 341.
The Smith case was an action brought in the circuit court by a residuary legatee under the will of one Kotany to recover a judgment in damages against the executor, St. Louis Union Trust Company, *Page 722 upon the ground of the latter's alleged negligence and breach of duty in delaying the sale of securities belonging to the estate with a consequent loss to the estate and to the plaintiff as a residuary legatee.
The will had provided that for the purpose of paying debts, costs of administration, or taxes, or for the purpose of making any settlement or distribution, the executor was authorized to sell any real or personal property belonging to the testator at the time of his death, at such times and prices and upon such terms as to it might seem desirable and proper, without the order or approval of the probate court.
The trust company demurred to the petition upon the ground that the circuit court had no jurisdiction of the action, and that exclusive jurisdiction was vested in the probate court. The trial court sustained the demurrer; and upon the plaintiff's refusal to plead further, final judgment was entered against him, from which he thereupon was granted an appeal to the Supreme Court.
In support of his contention that the circuit court had jurisdiction of the action, the plaintiff counted upon Section 281, Revised Statutes Missouri, 1939 (Mo. R.S.A., sec. 281), which provides that the bond of any executor or administrator may be sued on at the instance of any party injured for the waste or mismanagement of the estate, or other breach of the condition of the bond. The fact was that the trust company had given no bond, but inasmuch as it had theretofore qualified generally to act as executor or administrator without bond by virtue of its compliance with Section 8068, Revised Statutes Missouri, 1939 (Mo. R.S.A., sec. 8068) (the deposit of securities of the value of $200,000 with the finance commissioner), the plaintiff argued that its compliance with Section 8068 had been the legal equivalent of the giving of bond so as to have authorized an action in the circuit court for the waste or mismanagement of the estate. The Supreme Court held, however, that notwithstanding the trust company's compliance with Section 8068, it was still in the position, so far as the particular case was concerned, of an executor who had been permitted to act without bond, and that Section 281 providing for an action on a bond was therefore no authority for maintaining the action in the circuit court.
The Supreme Court concluded that since the matter about which the plaintiff was complaining was one which pertained directly to the settlement of the estate, the probate court had exclusive jurisdiction to grant the plaintiff his relief, and in reaching its result reaffirmed the doctrine that under the Constitution and laws of this State, the probate courts have exclusive original jurisdiction within their respective territorial jurisdictions in all cases arising under the general laws of this State relating to the administration of estates and to all matters pertaining to probate business, except for those *Page 723 cases where jurisdiction is expressly conferred upon the circuit court, or where the particular facts are such that adequate relief cannot be had at law.
In our decision in the instant case, we have not meant to be unmindful of the broad and exclusive jurisdiction which is conferred upon the probate courts of this State in all matters pertaining to probate business, including the settling of the accounts of executors and administrators. The Smith case furnishes an apt illustration of the extent of that jurisdiction, and convincingly demonstrates that in the field over which the probate courts have been invested with jurisdiction, their jurisdiction is both original and exclusive.
It seems to us to be apparent, however, that as to the facts upon which jurisdiction depends in the two cases, there is a clear distinction to be drawn between the Smith case and the case now before us for decision.
In the Smith case, the securities which the trust company was charged with having wasted and mismanaged were securities which the testator had owned at the time of his death, and which therefore became assets of his estate in the hands of the trust company as executor to be administered upon by the probate court. Having belonged to the testator at the time of his death, it required no act of either the probate court or the executor to make them assets of the estate; and until such time as there was an order of distribution by the probate court, no heir or legatee had any right whatever to their possession or control. The executor was alone responsible for their proper handling under the supervision of the probate court; and if the estate suffered a loss by reason of the executor's neglect of its duty under the discretionary power of sale conferred upon it by the will, there could be no doubt of the probate court's jurisdiction to have held the executor to account upon exceptions taken by the plaintic to the final settlement in the case.
In the instant case, however, the rents in question were not assets of the estate, but having accrued after the testator's death, belonged to Kinealy individually as an incident of title to the real estate which had vested in him as residuary devisee. If he, notwithstanding the fact that the rents belonged to him, had nevertheless voluntarily brought them into his administration by charging himself with them in his accounts, he would thereby have become responsible for them in his capacity as executor, and the creditors would have been entitled to look to the rents for payment of their claims against the estate. Nor when he elected to keep the rents for himself, did it mean that there was no remedy to be pursued against him. On the contrary, there was a full and complete remedy afforded by Section 129, Revised Statutes Missouri, 1939 (Mo. R.S.A., sec. 129), which authorizes the probate court to make an order "requiring" an executor or administrator to take possession of and rent the real estate where the *Page 724 court is satisfied that it is necessary to rent the real estate for the payment of debts due from the estate. Undoubtedly the statute was deliberately worded in such a way as to safeguard the interest of the estate where it was opposed to the personal interest of the executor or administrator; and it is therefore incorrect to assume that the right or duty to apply for such an order is restricted to the executor or administrator, but instead it may be entered upon the application of any creditor, as well as at the instance of the court itself, so long as the order is based upon the jurisdictional fact that the real estate is needed for the payment of debts.
In the case before us, the record disclosed the total lack of any personal estate; and when Kinealy undertook to retain the rents by virtue of his status as residuary devisee, either or both of these creditors might have petitioned the court for an order requiring him to account as executor for whatever rents might thereafter accrue, or the court itself, from its own inspection of its record, might have become satisfied of the necessity for the entry of such an order. But regardless of the source from which the order might have been inspired, the court had no jurisdiction to require Kinealy to account for the rents except upon the basis of such an order; and in the absence of such an order, Kinealy had the legal right to the rents as residuary devisee.
In satisfying itself of the necessity for the entry of such an order, the probate court would unquestionably have had original and exclusive jurisdiction of the character discussed by the Supreme Court in its decision in the Smith case. However that jurisdiction was never exercised; and when no timely steps were taken to require Kinealy to collect the rents as executor, it is now too late to hold him to account upon the theory that if such an order had been asked, it would have been granted by the court, or that a proper regard for his fiduciary obligation as executor should have prompted him to disregard his rights as residuary devisee. The only question within the jurisdiction of the probate court was whether, in the absence of an order requiring Kinealy to collect the rents as executor, the rents which he had collected should be accounted for as assets of the estate; and upon this question the only answer for the court to make was to deny the petition of the two complaining creditors. [Cleveland Co-operative Stove Co. v. Baldwin, 121 Mo. App. 397, 99 S.W. 47.]
The Commissioner accordingly recommends that the motion of respondent Wacker-Helderle Undertaking Livery Company for rehearing be overruled.