Having written the opinion in Division One which was rejected by Court in Banc, and still finding myself at variance with the views expressed by GRAVES, J., in the majority opinion filed herein, I am taking the liberty of filing this opinion as a dissent, the same being substantially similar to the divisional opinion.
GRAVES, J., having adopted the writer's statement of facts, it will be unnecessary to here repeat the same. For the facts reference is hereby made to the majority opinion.
I. At the threshold of our inquiry into the merits of plaintiff's appeal we are met with objections filed by defendant to the abstract of the record. For ground of objection defendant states that the abstract fails to show that plaintiff ever filed any motion for new trial or in arrest of judgment, and that consequently there is nothing before this court for review.
The cause was submitted in the court below upon the petition, the answer, and plaintiff's and defendant's respective motions for judgment on the pleadings. Plaintiff's motion was overruled, while defendant's motion was sustained andMotion for Judgment final judgment rendered in its favor. Toon Pleadings: In this ruling of the court plaintiff exceptedEffect a Demurrer. and duly filed a bill of exceptions, *Page 604 making both motions a part of the record. The motions raised a question of law. Defendant's motion went to the sufficiency of plaintiff's cause of action, while plaintiff's motion attacked the adequacy of the defense set up in defendant's answer.
While we are fully aware of the line of decisions which tend to hold, without assigning any substantial reason therefor, that a motion for judgment on the pleadings is not the same as a demurrer, nevertheless, the common sense view to take of the matter is that such a motion, for all practical purposes, performs identically the same functions as a demurrer, and that a motion for a new trial is not therefore necessary to bring the propriety of the judgment before the appellate court. This question was presented and squarely passed upon in Todd v. Mo. Pac. Ry. Co., 33 Mo. App. l.c. 114, and our conviction in the matter finds further recognition in O'Connor v. Koch, 56 Mo. 253.
However, from the view we take of the case before us, the question is really immaterial, and we content ourselves by passing to the real questions involved.
II. Coming then to the real matters at issue, and directing our attention to each of the further points raised by defendant, we find it first urged that the case of Leahy v.Res Adjudicata. Campbell, 274 Mo. 343, is res adjudicata of the instant suit.
Learned counsel for defendant contend that Leahy v. Campbell, supra, decided the following issues now said to be presented, viz.: (a) That the executor and beneficiaries could appeal from the order of the probate court suspending the letters of the executor; (b) that plaintiff herein never legally qualified and never became administrator pendente lite, because he never gave the bond required by law; and (c) that plaintiff herein is not entitled to compensation because he rendered no services as administrator pendente lite.
An examination of the opinion in Leahy v. Campbell *Page 605 shows that this court stated two propositions: First, that plaintiff herein, not being a party to the proceeding there under review, had no right to appeal from the decision of the circuit court; second, that the case there presented was but a moot case. However, what this court decided in Leahy v. Campbell was that the appeal of plaintiff therein should be dismissed, the order of dismissal being predicated upon the fact that plaintiff therein was not a party to the suit. This court having refused to assume jurisdiction, it is manifest that what was there said upon matters other than those relevant to the ground of dismissal were but obiter. Accordingly, it cannot now be successfully contended that Leahy v. Campbell is decisive of this case, which presents many questions not then before us. Nor did the dismissal of the appeal in that case serve to extinguish plaintiff's present cause of action. [18 C.J. p. 1208, par. 143.]
III. Analyzing the allegations of plaintiff's petition it will be observed that the salient averments are: (1) That Margaret C. Harrison and others instituted a will contest in the circuit court; (2) that pursuant to a motion filed in the probate court plaintiff herein was appointed administratorIssues Made by pendente lite; (3) that plaintiff gave bondthe Pleadings. in the sum of $10,000 and was ready, willing and able to give an increased bond of $10,000,000; (4) that plaintiff demanded and defendant refused to deliver possession of the assets of the estate, by reason of which plaintiff was damaged; (5) that defendant received and withheld from plaintiff the commissions to which plaintiff claims he was rightfully entitled.
An analysis of the somewhat lengthy answer, aside from the admissions and denials contained therein, shows the material allegations to be: (1) That the proceeding brought by Margaret C. Harrison and others was not a will contest, for the reason that none of the plaintiffs therein were heirs at law of James Campbell *Page 606 or interested in his estate; (2) that the judgment of the circuit court setting aside the order of the probate court suspending the letters testamentary of defendant and appointing plaintiff administrator pendente lite is res adjudicata; (3) that the appointment of plaintiff as administrator pendente lite was void for the reason that he never gave bond for an amount "not less than double the amount of the estate;" (4) that the case of Leahy v. Campbell, 274 Mo. 343, is res adjudicata; (5) that plaintiff is not entitled to any compensation for the reason that he rendered no services as administrator pendente lite; (6) that whatever right plaintiff had to demand delivery to him of the assets of the estate was vested in him solely as administrator pendente lite; (7) that the probate court alone had jurisdiction to make an allowance for compensation to plaintiff; (8) that plaintiff lost his right to compensation by failing to have the same fixed before final settlement of the estate; (9) that if plaintiff is entitled to compensation his claim is against the estate, and not against defendant.
The adjudication of this court in Leahy v. Campbell we have adverted to above. The remaining defenses set up in the answer we shall discuss in the paragraphs following.
IV. It is urged that as plaintiff did not give bond in an amount "not less than double the amount of the estate" he never qualified as administrator pendente lite.Bond.
Section 21, Revised Statutes 1909 (now Sec. 13, R.S. 1919), makes it the duty of the probate court to appoint an administrator pendente lite when the validity of a will is contested. Said section makes no mention of bond. However, by Section 25, Revised Statutes 1909 (now Sec. 17, R.S. 1919), it is provided that the court shall take a bond of persons to whom letters of administration are granted in "not less than double the amount of the estate." Nothing is said about bond being *Page 607 given before the administrator enters upon his duties, nor that the appointment shall be void unless the administrator gives the required bond within a specified time. In State ex rel. v. Churchill, 41 Mo. 42, a statute requiring county treasurers to give bond within ten days after their election or appointment was held to be merely directory, the court saying:
"The bond was not void, nor voidable, merely because not presented and filed within the ten days. This provision of the statute is directory only. The matter of time was not essential to the validity of the bond, nor a condition precedent to the party's title to the office."
In Aiken v. Sidney Steel Scraper Co., 197 Mo. App. 673, l.c. 681, the Kansas City Court of Appeals, following 23 Am. Eng. Ency. Law (2 Ed.) 355, and State ex rel. v. Churchill, supra, states the proposition thus:
"`The failure of a person duly elected or appointed to an office to take the prescribed oath or give a bond, as required, or either, does not, when he has proceeded to exercise the functions of the office, invalidate his acts so far as the public or third persons are concerned. As to them, his acts are as valid as though he were an officer de jure. His title to the office cannot be attacked collaterally, but only by direct proceedings in the nature of quo warranto. The failure to qualify constitutes a ground for ousting him from the office.' A failure to qualify by filing a bond when required, does not vacate the office."
The reasoning of these decisions demonstrates that the giving of an administration bond is not mandatory. but directory only, and that the failure to give bond cannot furnish the basis of a collateral attack on the title to the office. That the probate court has ample authority to protect heirs and those interested in the administration of estates from loss, on account of failure on the part of the administrator to furnish bond, or on account of insufficient bond, is attested by the various sections of the administration statute giving the court *Page 608 power to revoke the letters of the administrator or to require a new bond.
In the instant case the petition of plaintiff recites that the probate court fixed plaintiff's bond "for the time being at the sum of $10,000, to be increased upon receiving the assets of the said estate to the sum of $10,000,000, and that thereupon and on the same day, the plaintiff, as such administrator pendentelite, tendered his bond in the sum of $10,000, which, being examined by the said court, was accepted, approved and filed; and that thereafter, to-wit, on the 23rd day of October, 1914, the plaintiff having arranged for and being then ready, willing and able to give the increased bond of $10,000,000, and having so advised the defendant, made demand upon defendant for the delivery to him of the personal property," etc. From this allegation it is manifest that plaintiff did everything possible towards complying with the order of court. By such order he was not required to give the $10,000,000 bond until he had received the assets of the estate. According to the petition he had arranged for and was ready and willing and able to give the said bond, and so advised defendant. Defendant, however, refused to deliver the assets. Therefore, plaintiff cannot be said to have been in default when defendant itself rendered it impossible for him to comply with the condition precedent upon which additional bond was required of him. Accordingly, Section 25, Revised Statutes 1909 (now Sec. 17, R.S. 1919), being but directory, and there being no statute declaring it mandatory upon an administrator pendente lite to give bond in double the amount of the estate before entering upon the duties of his office, and plaintiff in this case having fully complied with the order of the probate court as to bond, we are of the opinion that defendant's insistence is not well founded.
V. It is pressed upon us that plaintiff's claim, if any, is vested in him as administrator pendente lite, and *Page 609 not as an individual; that such claim is one against the estate of James Campbell and not against defendant; that itCharacter should have been presented to the probate court beforeof Claim. final settlement was made; and that the probate court alone had jurisdiction to make an allowance to plaintiff.
Preliminary to a consideration of these defenses it is important that we examine the meaning and effect of Section 21, Revised Statutes 1909 (now Sec. 13, R.S. 1919). Said section, so far as apposite to this proceeding, provides that:
"If the validity of a will be contested . . . letters of administration shall be granted during the time of such contest . . . to some other person, who shall take charge of the property and administer the same according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act."
The petition before us alleges that Harrison and others instituted a proceeding in the circuit court "in the nature of a will contest, wherein they drew into question the validity of the said purported will of the said Campbell, deceased, and prayed the framing of an issue thereon, and that upon the hearing of such issue it should be determined that the said alleged will was not in truth and fact the will of the said Campbell, deceased." Clearly this averment characterized the said proceeding as a will contest. In the answer of defendant it is asserted (and is here insisted) that the Harrison suit was not a will contest, for the reason that none of the plaintiffs therein were heirs at law of James Campbell or interested in his estate. This but joins issue with the allegation of the petition as to the Harrison suit being a will contest, and tenders a question of fact. Clearly, therefore, as to that matter the circuit court was in error when it entered judgment on the pleadings for defendant. And moreover, the proposition *Page 610 as to whether the plaintiffs in the case had an interest in the estate was a question to be decided in the circuit court, and not by the probate court. Accordingly, upon the filing of the petition in the will contest suit, the authority of defendant as executor was suspended, and, upon the suit being brought to the attention of the probate court, it became the duty of that court under Section 21 aforesaid, to appoint an administrator pendentelite.
As said in State ex rel. v. Moehlenkamp, 133 Mo. l.c. 138: "By this statute" (Section 21) "it is perfectly clear that the probate court had authority to suspend the functions of the executor named in the will and to appoint an administrator pending the contest."
As stated in Johnson v. Brewn, 277 Mo. l.c. 397: "Section 21 does not provide that when a contest is filed the probate court shall revoke the order admitting the will to probate and granting letters testamentary; it only provides that the court shallappoint a temporary administrator. The obvious inference is that the probate court is powerless to revoke the order, because the order is already vacated by the filing of the suit to contest. The probate court retains jurisdiction of the estate and shouldappoint a temporary administrator to administer it. But the jurisdiction of all questions pertaining to the probate of the will are transferred by the contest to the circuit court. . . . The will must still be proved or rejected in the circuit court." (Italics ours.)
And in accordance with the further doctrine declared by Johnson v. Brewn, supra, upon the filing of the Harrison suit to contest the Campbell will, the executor of said will, defendant herein, could exercise no further authority thereunder pending the termination of the contest. Therefore, defendant having continued to hold the property of the estate and to administer thereon, and having received the commissions alleged, such claim as plaintiff may have had became a claim personal to him, against defendant rather than against the estate. It *Page 611 follows that the probate court was without jurisdiction to adjudicate the said claim.
VI. It is earnestly stressed by defendant that as an appeal was taken to the circuit court from the order of the probate court suspending the letters testamentary granted defendant, and as the circuit court set aside said order and reinstated defendant as executor, plaintiff is barred from prosecuting hisAppeal. claim. This contention calls for a decision of the question as to whether or not the right of appeal existed from the order of suspension made by the probate court.
In support of its position that an appeal lies, defendant cites the cases of Lamb v. Helm, 56 Mo. 420; Rogers v. Dively,51 Mo. 193; and Achor v. Sullenger, 137 Mo. App. 372. An examination thereof shows that none of said cases are in point. All merely go to the question of the authority of the probate court, in the event of a will contest, to suspend the functions of the executor and to appoint an administrator pendente lite.
Defendant also relies upon Leahy v. Campbell, 274 Mo. l.c. 361. What this court there said was this: "Whilst I think it can be demonstrated with the accuracy and precision of an Indian's arrow, that an appeal will lie from the probate court to the circuit court from an order suspending the letters testamentary of an executor under a will, yet if either of the two propositions above is well founded, such a discussion would be a useless one, and we therefore pass it."
Unmistakably this language cannot be construed as an adjudication that an appeal does lie. The point was not decided, and it is specifically so stated.
In Johnson v. Brewn, 277 Mo. 392, however, this court did enunciate a principle, being guided by a line of former decisions, which is controlling in this case. We there held that the filing in the circuit court of a suit to contest a will,ipso facto, operates to vacate an order of the probate court admitting the will to probate, *Page 612 without any formal order of revocation by the probate court, and that the power and rights of the executor are automatically suspended pending the will contest. We further held that "the probate court retains jurisdiction of the estate and should appoint a temporary administrator to administer it." This ruling was made in the light of Section 21, Revised Statutes 1909 (now Sec. 13, R.S. 1919), pursuant to which plaintiff herein was appointed administrator pendente lite. Applying such rule to the instant case: If, therefore, the filing of the Harrison suit in the circuit court ipso facto operated to suspend defendant's authority as executor, and if it thereupon became mandatory upon the probate court to appoint an administrator pendente lite, it is obvious that an appeal to the circuit court from the order suspending defendant's letters testamentary and appointing plaintiff administrator pendente lite would be an ineffectual and useless proceeding. The law never contemplates that an ineffectual or useless thing be done.
That an order suspending the letters of an executor and appointing an administrator pendente lite is not appealable has been inferentially held by this court in State ex rel. v. Moehlenkamp, 133 Mo. l.c. 138, wherein BURGESS, J., said:
"The probate court having jurisdiction under the statute over the relator as executor, and the authority to suspend him as such executor pending the contest of the will of his testator, it makes no difference that the orders suspending him and appointing an administrator pending the will contest may not have been appealable. If the court had jurisdiction, as we hold that it had, then the authority to appoint an administrator to take charge of the estate while the suit is pending followed as a sequence, and although it may have erred in its rulings, prohibition will not lie. If the orders were not appealable, the action of the court, had relator desired that it be done, might have been reviewed by proceeding by certiorari." *Page 613
It is our opinion that the right of appeal was not open to defendant, and that the circuit court erroneously assumed jurisdiction and set aside the order of the probate court.
VII. It is finally claimed that plaintiff is not entitled to any compensation for the reason that he rendered no services as administrator pendente lite.
As we have hereinbefore pointed out, upon the filing of the will-contest suit it became the imperative duty of the probate court, under Section 21, Revised Statutes 1909 (now Sec. 13, R.S. 1919), to appoint an administrator to administer upon the estate during the pendency of such suit. The powers of defendant as executor were at once suspended by operation of law. That being true, plaintiff, the administrator appointed, became entitled to the possession of the assets of the estate, and to administer upon them so far as required. As an incident to his office he was entitled to reasonable compensation for any services performed by him. [Hawkins v. Cunningham, 67 Mo. 415.] If defendant wrongfully refused to surrender the assets to him, and he was thereby prevented from rendering any services in connection with the administration of the estate, and from earning the commissions to which he would have become entitled, for the wrong so done defendant should be made to respond to the extent of the damages suffered. An inquiry into the amount of such damages is, however, not before us, for the reason that both defendant's and plaintiff's motions for judgment on the pleadings raised only a question of law as to the legal sufficiency of the facts pleaded. And we are convinced, after a careful and painstaking consideration, that the facts pleaded in defendant's answer do not constitute a complete defense to plaintiff's claim. Therefore, the circuit court erred when it rendered final judgment for defendant. What should have been done was for defendant's motion for judgment on the pleadings to have been overruled, *Page 614 the same as was plaintiff's like motion, and for plaintiff to have then been given an opportunity, if desired, to reply to the answer of defendant. If plaintiff failed in this, it would then have been proper to proceed to final disposition of the case.
Having concluded all the questions raised, and entertaining the views above indicated, it is our opinion that the judgment should be reversed and the cause remanded with directions to the circuit court to overrule defendant's motion for judgment on the pleadings and to reinstate the cause for further proceedings not inconsistent herewith. Woodson, C.J., concurs.