ON EEHEAEING.
TRIMBLE, J. —After the announcement of the original opinion herein by our learned associate, Judge Johnson, appellant filed motion for a rehearing, and cited therein the recent decision of the Supreme Court in Judson v. Bennett, 233 Mo. 607, and a rehearing was granted on the ground that Judge JohNson’s opinion seem to be in conflict with the above case. On rehearing, our learned associate came to the conclusion that his opinion was in conflict with the Judson case and that, as it is the latest expression of the Supreme Court’s views on the point in question, it should be followed and the cause before us reversed and remanded instead of affirmed.
I am unable to agree with our associate in the conclusion reached by him on rehearing. To my'mind the original opinion is the correct view. The point wherein the original opinion seems to differ with the Judson case is the right of an administrator to receive credit in his settlements for sums he has paid out as debts owed by the estate but which were not allowed by the probate court according to law.
As I understand the record in the case before us, respondents do not admit that the several credits ob-*658jeeted to were the debts of deceased. What they did admit was that W. L. Young and Owen Meredith would both testify that said credits were debts of deceased. But they objected to this testimony and their objection was by the court overruled. The ground of their objection was that the demands had never been proved or formally allowed by the probate court.
But even if it is admitted that the items objected to were debts of the deceased, this would not authorize the court to give the administrator credit for them when they had not been established and allowed by the probate court within the time prescribed by and according to law. While the fact that the items objected to are bona fide debts of the deceased, and the objection to them is solely on the omission to have them allowed, may appeal strongly to the sympathy of the court in behalf of the administrator, yet judges have no right to go- contrary to the express command of the statute no matter if obeying it does appear to result in hardship to a litigant.
As held by Judge JOHNSON in his original opinion, section 230, Revised Statutes of Missouri 1909, says: “Upon every settlement, the executor or administrator shall show that every claim for which disbursements have been made has been allowed by the court according to law.” Prior to the Revision of 1889 (sefe. 223) this section contained these additional words, “or shall'produce such proof of the demand as would enable the claimant to recover in a suit at law.” [R. S. Mo. 1879, sec. 230.] This portion was, in said revision, stricken out. In Springfield Grocer Co. v. Walton, 95 Mo. App. 526, l. c. 533, Judge Barclay, speaking of the change in the statute, said: “The alteration of the law in question was intended to make the allowance by the court an essential prerequisite to the payment of all ordinary demands against an estate. The credits claimed, therefore, could not properly be allowed to the administrator, where any interested *659party excepts or objects thereto on final settlement.” And onr Supreme Court in Lanston v. Canterbury, 173 Mo. 122, l. c. 128, explicitly field to tfie same effect. In deciding this point tfie Supreme Court said: “Tfie amendment of tfiat section by striking out tfie last clause and reducing it to what we now have, is a very emphatic expression of legislative intent that nothing less than tfie allowance of tfie claim by the- court would avail tfie administrator.”
If tfie statute and tfie construction placed thereon by tfie Supreme Court in tfie Langston case are still binding on us, there is no authority in us, or in tfie trial court, to permit an administrator to take credit for a debt paid by him but which was not allowed, however much we may feel tfiat in equity and good conscience fie should be allowed such credit. Tfie law was so framed in order to protect dead men’s estates, and to make sure tfiat before any claim is paid it will receive tfie careful unbiased sanction of a court’s formal judgment. It is a law easily observed. There is nothing difficult for'an administrator to do in obeying it. All fie has to do is to say: “Have your claim allowed and I will pay it, but not before.” In fact, it is a help to him since it relieves him of tfie responsibility of deciding the justness and legality of debts.
The case of Judson v. Bennett, 233 Mo. 607, ought not, in my judgment, to be deemed an authority to tfie contrary. If tfie writer understands tfie facts correctly, the will in tfiat case conveyed tfie property to the executors with specific directions to manage the estate and pay all debts of the deceased without having them alloived by the probate court. On page 623 of tfie Judson case tfie trial court, in its findings of fact, says tfiat, ordinarily, executors would have no right to pay any indebtedness without tfie same having been first allowed, but that “in this case the will directs them to do so,” and “contains provisions that are not found in any cases cited by tfie counsel or *660found by the court. First, tbe provision for tlie payment of the debts without allowance by the probate court.” [p. 624.] It was argued before the trial court in that case that this direction in the will, to pay debts without having them allowed, was a nullity as the “testator had no right to fix any mode for the payments of his debts except the mode provided by law, ’ ’ [p. 623.] But the trial court held that such provision in the will was not a nullity. And the Supreme Court upfheld that view1. And it was in passing on this question that the Supreme Court on page 646 uses the language which, at first blush, seems to hold contrary to the original opinion herein and the Langston and Springfield Grocer cases. But that language, though perhaps general in its terms, is applicable only to the peculiar facts of that case and to the subject then under discussion. This subject is disclosed in the opening lines of the paragraph containing that language. The'Supreme Court say: “The contention of counsel for appellants is, the law of the State, applicable to probate matters, and not the wills of deceased persons, governs the settlement and distribution of their estates.” And it is in passing on this question, i. e. the validity of such a provision in the will, that the court uses the language referred to.
The language of the Supreme Court on page 649 to the effect that the law imposes certain duties on executors which they cannot escape, among them, the collection and preservation of the assets and the payment of debts, was not used in answer to any argument on the question now before ns. In fact, it was not said on this point at all, but on an entirely different one. The trial court had allowed respondents omissions twice, once as executors and again as trustees, and it was in passing on the propriety of this allowance that the Supreme Court used the language last above' mentioned. On this point the Supreme Court disapproved the ruling of the trial judge while it ap*661proved its ruling on the other point. So that the language could not possibly apply to the latter.
In conclusion, I do not think the Judson case was dealing with the precise question we have here. The language used applies only to the facts of that case wherein the will directed the debts to be paid without allowance. While it appears general in- its terms yet it was not intended to apply to administrator or executors where there was no such authority in the will. Hence it does not overrule the Langston case in 173 Mo. 122, but leaves it still in force, and, therefore, our duty is to follow the Langston case and the statute. Hence the judgment should he affirmed.
I do not think the language of the Supreme Court in 233 Mo. 647, in the Judson case, that “ counsel for appellants have cited us to no authority supporting that proposition, nor have we been able to find any such” means that either the statute or the Langston case has been overlooked, but only that, owing to the peculiar and unusual authority, to pay debts without allowance, contained in the will, makes the statute and the Langston case inapplicable to the Judson case. For these reasons I vote to affirm the judgment. Elli-SON, P. J., concurs in separate opinion. JOHNSON, J., dissents, and deeming the majority opinion on rehearing to he in conflict with the decision of the Supreme Court in the Judson case, supra, certifies this case to that tribunal for final determination.
ELLISON, P. J. —So far as heirs are concerned, the testator being under no obligation to them may direct in his will that his debts may be paid without allowance by the probate court. If the testator disposes of that part of his estate in that way, he has a right to do so, without consulting the wishes of his heirs, and they are only entitled to what remains. The question before the Supreme Court in Judson v. Bennett, 233 Mo. 607, is not the one involved here. In this *662case there was no will and the estate was therefore to be settled by the administrator as directed by the statute; that is, to pay only such debts as have been allowed. While in that case there was a will which directed the debts to be paid without allowance. The' contention of the heirs in that case, as disclosed in their instruction, quoted at page 645' of the report, was that the executors had no right “under the will” to pay claims against the estate until after they had been first allowed. And the court, at page 646, stated the question raised by them was, that the probate statute governed the executors, and not the will. It is to that question Judge WoodsÓN’s opinion is addressed. It, in all probability, did not occur to the court that its remarks wotild be regarded as applicable to cases of ordinary administration where there was no will, or, if one, where no direction was given by the testator. To a correct understanding of language the first requisite is to ascertain the subject to which it is addressed. I concur in the opinion of Judge.Trimble.
JOHNSON, J. —I think the language of the Supreme Court in the Judson case is couched in such broad and comprehensive terms as to preclude the thought that the rule overturning the Langston case was intended to be restricted in its application to special cases such as that the court had under consideration.
Therefore, I cannot regard the majority opinion, in the present case, the reasoning and logic of which I approve, in any other light than as being in conflict with the latest decision of the Supreme Court on the subject, and it is for that reason that I certify the cause to the Supreme Court.