(dissenting).
The plaintiff’s contentions with respect to waiver and estoppel are precluded by the majority decision in Clarke v. Organ, Mo., 329 S.W.2d 670. Except for quantum of *741evidence there is no basis to reassert a minority view. However, other questions presented have a different basis and render reliance upon waiver and estoppel unnecessary.
By Point 4 of his brief the plaintiff presents the theory that, the liability of the decedent being insured, the plaintiff is lawfully entitled to pursue his remedy in the circuit court without relying on the probate code and, if successful, to enforce collection against the insurance proceeds without resort to the assets of the decedent being administered by the probate court. Such a remedy is sanctioned by statutory law and can be pursued without interfering with the prompt, efficient and effective administration and settlement of a decedent’s estate as intended by the new probate code.
The action was timely filed in circuit court but a copy of the process and return of service thereof were not filed in probate court. At the hearing on the motion to dismiss the plaintiff offered to show that after allowing the widow her maintenance and homestead and the payment of such allowances there were only enough assets left in the estate to pay the cost of administration. This offer was rejected on defendant’s objection. The plaintiff by leave reduced the prayer of his petition to $15,000 and offered to prove that the decedent’s liability was insured in the sum of $15,000. This offer was also rejected. During the hearing of the motion, plaintiff’s counsel acknowledged that there would be no assets in the estate for payment of any judgment obtained and further stated: “The record can show that the only collection we expect to make is from the insurance company and not from the assets of the estate.”
It is very properly said that, so far as a decision on the merits is concerned, the courts cannot give consideration to the fact that the liability in a personal injury case is insured. However, the courts are obligated to take into consideration and give effect to the statutes of this state which grant rights and provide remedies where liabilities are insured. Such statutes provide for the survival of personal injury actions and their prosecution against the personal representatives of deceased persons which personal representative the probate court is not only authorized but required to appoint for that sole purpose. Section 537.020. Other statutes authorize the successful plaintiff to have direct recourse to the proceeds of liability insurance to satisfy his judgment. The public policy of the state as evidenced by statute and case law not only invite but require our consideration of these matters.
This policy is evidenced in part by The Motor Vehicle Safety Responsibility Law, Chapter 303, RSMo 1949, V.A.M.S. When a motor vehicle operator is required to furnish the state with proof of his financial responsibility he may do so by means of (1) a policy of liability insurance, (2) a bond with sufficient surety, or (3) a deposit of money or securities. Section 303.130. The statutory rights of an injured person to insurance funds will be discussed later, but his preferred status where money or securities is deposited is evident from this provision of the law: “2. All money or securities so deposited shall be subject to execution to satisfy any judgment mentioned in this chapter but shall not otherwise be subject to attachment or execution.” Section 303.160, subd. 2. Obviously such a judgment creditor would have first call upon the money deposited for the satisfaction of his judgment and the rights of the motor vehicle operator, his personal representative and others in the fund would be secondary.
Where a casualty is covered by liability insurance, our statutes create a right on the part of the person injured which attaches as of the date of the casualty and cannot thereafter be defeated by any voluntary agreement or collusion between the insurance company and the assured and the payment of the loss established does not depend upon satisfaction by the insured of a final judgment against him.
*742These statutes insofar as here pertinent provide as follows:
Section 379.195. “1. In respect to every contract of insurance made between an insurance company, * * *, and any person, * * *, by which such person, * * * is insured against loss or damage on account of the bodily injury * * * by accident of any person, for which loss or. damage such person, firm or corporation is responsible, whenever a loss occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company, if liability there be, shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him, for loss, or damage, or death, or if the insured becomes insolvent or discharged in bankruptcy during the period that the policy is in operation or any part is due of unpaid, occasioned by said casualty.
“2. No such contract of insurance shall be canceled or annulled by any agreement between the insurance company and the assured after the said assured has become responsible for such loss or damage, and any -such cancellation or annulment shall be void.”1
Section 379.200. “Upon the recovery of a final judgment against any person, * *, for loss or damage on account of bodily injury or death, or damage to property if the defendant in such action was insured against said loss or damage at the time when the right of action arose, the judgment creditor shall he entitled to have the insurance money, * * * described in section 379.195, * * * applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.”
These statutory provisions become a part of a policy of liability insurance as completely as if set out therein. They nullify any contrary provisions in the policy and the obligation on the part of the insurer to pay accrues the moment judgment against the insured has been rendered. Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S.W.2d. 289, 295, 127 A.L.R. 163; Dyche v. Bostian, 361 Mo. 122, 233 S.W.2d 721, 724. These statutes create substantive rights and prevail over procedural statutes. State ex rel. Anderson v. Dinwiddie, 359 Mo. 980, 224 S.W.2d 985, 987. The obligation of the insurance company to pay the judgment creditor is a direct and primary obligation. Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 239 Mo. App. 38, 187 S.W.2d 469, 470-471.
After the casualty has occurred the insurer and the insured cannot by voluntary agreement or collusive action impair the right of the injured person to have the proceeds of the policy applied to the satisfaction of any judgment obtained against the insured. Pennsylvania Casualty Co. v. Phoenix, 10 Cir., 139 F.2d 823. The remedies provided by these two sections are cumulative and consistent; if for any reason the judgment cannot be collected by garnishment, a suit in equity may be. brought. Lajoie v. Central West Casualty Co. of Detroit, Mich., 228 Mo.App. 701, 71 S.W.2d 803, 809.
Thus it is apparent that a plaintiff in a personal injury action of this kind is not relegated or limited for the satisfaction of his judgment to the real and personal property of the decedent in probate court. There may be little or no assets in the probate estate and, if there are, collection out of the insurance proceeds may be more convenient. Moreover, if a probate estate were solvent and-the plaintiff having given proper notice obtained a judgment which was insured, but chose instead to collect the judgment out of the assets of the decedent’s estate, we expect the invitation to *743come into probate court would be very quickly withdrawn and properly so. This is a protection which the insured bought and'paid for in his lifetime and it should inure to his estate.
The question remains whether a plaintiff in a personal injury action suing a personal representative óf a deceased person must notify the probate court and have his judgment classified for payment even though he has no intention of having his judgment satisfied out of the assets, if any there be, in the probate estate.
The General Assembly has provided that personal injury actions against a deceased wrongdoer do not abate and, quite apart from the probate code, has further provided that the existence of such a cause of action without more “shall be sufficient to authorize and require the appointment of a personal representative” for the deceased upon the application of any “person interested in such right' of action”. An interested person would, of course, include the one in whose favor such right of action survives.
This represents a departure from the usual practice in the granting of letters in a decedent estate. Ordinarily a probate court has no jurisdiction to appoint an administrator for a deceased person unless there are assets in the estate. Becker v. Buder, D.C., 88 F.Supp. 616, affirmed 8 Cir., 185 F.2d 311; De La Vergne v. Richardson, 198 Mo. 189, 95 S.W. 898; 33 C.J.S. Executors and Administrators, § 5, p. 883, note 57. An applicant for letters is ordinarily required to state the probable value of the real and personal property to be administered. Section 473.017(3). The traditional purpose of granting letters in a decedent estate is to administer assets. But the policy set by the pi-bate code is to dispense with administration when the value of the estate does not exceed the amount allowed as exempt property and to the widow or unmarried minor children, § 473.090, or under certain circumstances when the net estate does not exceed $1500, § 473.097.
Nevertheless, § 537.020, as amended Laws 1955, p. 780, § 1, in addition to providing that causes of action for personal injuries shall survive against the personal representatives of the person liable for the injuries, further provides in paragraph 2: “The existence of the right of action for death or personal injury that does not result in death shall be sufficient to authorize and to require the appointment of a personal representative for the person liable for such death or injury by the probate court upon his death upon the written application of any person interested in such right of action for death or injury.”
Tlie mandatory language of the part of the statute quoted indicates a purpose to require an appointment even though there are no assets in the estate or any prospects of there being any. It is quite reasonable to assume that the General Assembly knew that many such liabilities were insured and absent such mandate the insurance carrier might prevent the appointment of a personal representative (and thereby win its lawsuit) oh the ground that the deceased left no assets to administer. This construction is not only plausible but fits in with other legislation dealing with this and related subject matters.
The statute clearly gives a right to have a personal, representative appointed where there can be no purpose other than to furnish a party defendant in adversary litigation. The use of a personal representative for a similar unorthodox purpose also appears in the wrongful death statutes. If no one survives who has a prior right, the action may be instituted by the administrator or executor of the deceased and the recovery distributed by him according to the laws of descent. The recovery is not for the use of the estate generally, but the personal representative is in effect the trustee of an express trust for the beneficiaries of the. estate. Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504; Donelson’s Estate v. Gorman, 239 Mo.App. *744300, 192 S.W.2d 29; Troll v. Laclede Gaslight Co., 182 Mo.App. 600, 169 S.W. 337.
The constitutional guaranty of a remedy for every right includes actions for.wrongful injuries. Constitution of Missouri 1945, Art. I, § 14, V.A.M.S.; State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418, 424; De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640. Unless the prosecution of the present action does violence to some positive statutory prohibition, it should be permitted to go forward.
Only two sections of the probate code can have any possible application in this situation. Section 473.367 provides that an action commenced against an administrator after the death of the decedent is considered “a claim duly filed against the estate” from the time of serving the original process and filing a copy thereof with the return of service in the probate court.
The first paragraph of § 473.360 generally provides that all claims “against the estate of a deceased person,” not filed in the probate court within nine months after the first published notice of letters of administration, are forever barred “against the estate, the executor or administrator, the heirs, devisees and legatees of the decedent.” This deals with claims filed directly in the probate court. The second paragraph, of this section insofar as here pertinent reads as follows: “All actions against the estate of a deceased person, * * * shall be barred unless notice of the * * * institution thereof is filed in the probate court within nine months after the first published notice of letters.” This would include actions filed in the circuit court such as this one if designed to become a charge on assets in the probate estate.
It will be noted that both of these sections refer to a claim of action against the estate of a deceased person. This term is defined in § 472.010, subd. 11 as follows: “ ‘Estate’ denotes the real and personal property of the decedent * * Further the first paragraph of § 473.360, dealing with claims filed and prosecuted in the probate court, provides a bar against the estate as well as others for a failure to file in time, while the second paragraph provides for a bar against the estate alone. The personal representative is not mentioned in the latter instance.
Giving effect to all the matters, I think it is reasonable to construe § 473.360, subd. 2 as not to bar actions timely filed in the circuit court unless the judgment sought is intended as a claim “against the real and personal property of the decedent” being administered in probate court. The primary purpose in statutory construction is to ascertain and give effect to the legislative intent. State on Information of Dalton v. Miles Laboratories, Inc., 365 Mo. 350, 282 S.W.2d' 564. The law favors construction of statutes which harmonize with reason and which tend to avoid absurd, unreasonable, or confiscatory results or oppression. Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832; Ellis v. State Dept. of Public Health and Welfare, Mo.App., 277 S.W.2d 331, affirmed 365 Mo. 614, 285 S.W.2d 634.
A particular construction of a statute which will occasion an inconvenience or produce inequality and injustice is to be avoided if another and more reasonable interpretation is present in the statute. State ex rel. St. Louis Public Service Co. v. Public Service Commission, 326 Mo. 1169, 34 S.W.2d 486; Lamar Water & Electric Light Co. v. City of Lamar, 140 Mo. 145, 39 S.W. 768.
An established public policy is not to be overidden by general terms of the statute which does not show with certainty a legislative intent to depart from that policy. National Mfg. Co. v. United States, 8 Cir., 210 F.2d 263, 274[6], certiorari denied 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108.
Another pertinent rule of statutory construction is that the interpretation of a *745law by a subsequent General Assembly though not controlling is entitled to respectful consideration. State ex inf. Gentry v. Long-Bell Lumber Co., 321 Mo. 461, 12 S.W.2d 64; State ex rel. Wayland v. Herring, 208 Mo. 708, 106 S.W. 984; United States v. Stafoff, 260 U.S. 477, 43 S.Ct. 197, 67 L.Ed. 358; First National Bank in St. Louis v. State at inf. Barrett, 263 U.S. 640, 44 S.Ct. 213, 68 L.Ed. 486, affirming State ex rel. Barrett v. First National Bank in St. Louis, 297 Mo. 397, 249 S.W. 619, 30 A.L.R. 918; Kansas City v. Travelers Insurance Co., Mo.App., 284 S.W. 2d 874. In the most recent session of the General Assembly, paragraph 2 of § 473.360 was amended to read as follows: “2. Unless written notice of actions instituted or revived under sections 473.363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distributee or other person receiving such assets.” Laws 1959, p. 267. It reasonably appears that the purpose of this amendment was made to make clear that the General Assembly did not by the original enactment intend to destroy other rights and remedies and preclude a plaintiff who was not seeking a judgment payable out of the assets being administered in the probate court. In other words, the legislature did not intend to take away the right and remedy it had given in § 537.020 and other statutes. A contrary interpretation of § 473.360, subd. 2 is not only unnecessary to the proper function of the new probate code, but violates established rules of construction resulting in the destruction of statutory rights and a remedy otherwise vouchsafed to the injured party.
Section 473.013, designating the administration of the estate of a decedent as a proceeding in rém, does not pretend to convert personal injury actions filed against personal representatives into actions in rem. Actions for personal injuries under § 537.020, though directed against an administrator, remain actions in personam. Section 473.-013, however, raises an interesting question as to whether the notice of suit is a notice in the administration proceeding which is not jurisdictional.
It can be demonstrated by reference to applicable sections of the probate code that an estate can be administered and closed in the probate court without interference from a suit in circuit court, notice of which has not been given. Likewise, such a case as the pending one can be conducted in circuit court independently of the regular administration in probate court. If necessary, the probate court could be required to appoint a successor personal representative under the mandatory language of § 537.020.
As previously indicated, § 537.020 is the key statute in the series upon which plaintiff’s right to proceed rests. And of particular importance is that part of the statute which gives the injured person an unqualified right to have the probate court appoint a personal representative for the person alleged to be liable. The right to require the appointment does not depend upon the existence of assets to be administered; it is sufficient that a right of action exists. This is a right independent of the probate code.
The restrictions of the probate code would properly come into play only if the plaintiff sought to subject the “real and personal property” of the decedent to the payment of his claim. This he could not do unless he filed notice in probate court within nine months after the issuance of letters and had his judgment classified as a claim in the probate court.
A personal representative has the right and duty to protect the “real and personal property” of the decedent from claims which have not been established in the manner provided- by the probate code. But the insurance carrier, acting through the personal representative authorized under § 537.020, should not be permitted to use the *746notice and classification features of the code to forestall a trial on the merits and thus prevent the plaintiff from reaching other sources provided by law for the payment of his judgment.
On the other hand, a personal representative whose real concern is the preservation of the assets of the estate for distribution as provided by law has further opportunities to do so. A judgment creditor is required to file a copy of his judgment or decree in the probate court before it becomes “a claim against an estate.” Section 473.-370. The probate court must classify the judgment as a claim before the administrator is authorized to pay it. Section 473.-373. An administrator is not required to raise in the circuit court the objection that notice of the institution of suit was not timely filed in the probate court. Under Clarke v. Organ he could not waive the objection. Sections 473.370 and 473.373 make it clear that the administrator or other interested person could interpose the objection for the first time when the judgment creditor presents his judgment for filing, classification and payment in the probate court. However, I would see no objection to requiring the plaintiff as a matter of practice to declare in the circuit court whether he proposes to subject the assets of the estate to the payment of his judgment if one is obtained. Where as here a party plaintiff has disclaimed any intention to recover against the assets in probate court, there can be no possible interference with the administration and distribution of such assets and the plaintiff should be permitted to proceed in circuit cou-rt.
In my opinion the evidence offered by plaintiff on the motion to dismiss should have been admitted and the motion should have been overruled on proof that the liability of the defendant was insured. If it is desirable to determine at this stage that a judgment obtained could not become a claim against the assets in probate court, the fact of insurance and plaintiff’s intent to look only to the insurance proceeds could be pleaded in plaintiff’s petition (to which a jury would not have access) or it could be raised on defendant’s motion. By a separate finding and appropriate order on this issue, the circuit court could preclude any judgment obtained from becoming an incumbrance upon the assets of the estate or impeding the probate proceedings.
I would reverse the judgment and remand the cause with directions to permit the action to proceed if the trial court finds the object of the action is other than to establish a claim in probate payable out of the assets of the estate of the decedent.
. All italics within quotations are added unless otherwise noted.