Upon a motion for rehearing,
Lewis J.,delivered the-opinion of the court.
A motion for rehearing has been filed in this cause, in. which, assuming that “the court, in its opinion, has overlooked or failed to note essential and material facts,” the-point is made that, when the original plaintiff’s marriage-was suggested in the Circuit Court, the two years of administration of Baer’s estate had already passed. This is a. mistake of the counsel. The letters were granted in July, 1870. The suggestion of marriage was made on February-21, 1872, as appears by the record. The case was tried, in March, 1873 — more than a year afterwards.
There is nothing in the suggestion that Yielhaber was-made a co-plaintiff by agreement of parties. That agreement gave him a right to cooperate in the prosecution of. the suit. But it could not confer upon him a right of *119recovery, which the law withheld under the circumstances of the case.
The point presented with reference to the order of “no process” and the appropriation to the widow is sufficiently answered in the opinion already delivered.
For the purposes of this case it is of no consequence whether the demand belonged to Mrs. Yielhaber in her individual right or not. She had sued upon it as executrix, and could not, in the same proceeding, recover by virtue of a different title. Having ceased to be executrix, she could not then recover in any capacity, unless by a new suit, or its equivalent in an admissible amendment. The introduction of Yielhaber was no such amendment, because the record still shows that she was suing as executrix.
It may be true that there was no necessity for the appointment of an administrator de bonis non, so far as the estate itself was concerned. But there is always a necessity that parties shall appear before the court in the characters by which they expect to recover. Burdyne v. Mackey, 7 Mo. 374.
Judge Gantt concurring, the motion for rehearing is overruled; Judge Bakewell not sitting.