On rehearing.
Ray, C. J.This case is before us for the third time ; in the present instance, on motion for rehearing, which was sustained, as to the question of jurisdiction only.
The case was originally commenced in the county court, which at that date had probate jurisdiction, under sections 7, 10 and 11, of the second article of the administration law (1 Wag. Stat. j p. 85), where plaintiff had *606judgment, from which defendant appealed to the circuit court, where, upon a trial de novo, the proceeding was dismissed for want of jurisdiction, from which the plaintiff appealed to this court, where the judgment of the circuit court was reversed and the cause remanded for a re-trial, with directions. Eans’ Adm'r v. Eans, 79 Mo. 53.
There seems to be considerable misapprehension as to the scope and meaning of that opinion; as to what it has or has not decided, or attempted to decide, owing, doubtless, in part, to the want of careful attention and consideration of the peculiar facts, as shown by the evidence of the case; the instruction given at the instance of defendant, as well as that given by the court on its motion ; and also in part to the want of accuracy .and clearness in some of the language used by the court, as well as the use of somewhat inaccurate, unadvised and misleading terms, in some parts of said opinion, relative to the openness and notoriety of defendant’s claim and possession of the property in dispute.
As to the facts of the case : There is no question as to the death of defendant’s husband, the appointment of his administrator, and that, at and prior to the time of his death, he had been actively engaged in merchandising and other business operations conducted in his own name, at Russellville, and at the time of his death, was at least in the apparent possession and ownership, among other things, of a stock of goods, chattels, money, promissory notes, accounts, certificates of deposit, issued by, the National Exchange Bank of Jefferson City, Missouri, and the First National Bank of Jefferson City, Missouri, certificates of shares of stock in a certain bank, deeds of trust, securing promissory notes, etc., and title deeds to real estate, etc., all of which were, on their face, payable to or in the name of said deceased. All this. property, thus evidenced, *607it is conceded, on the death of the husband, came into the possession and control of the defendant, his widow, and so remained at the time of filing said affidavit by the administrator under said section 7 of the statute, and also at the time of the trial before the county court, and also at the subsequent trial de novo in the circuit, court, and that she openly held the same under claim or color of title thereto. There was no pretense of any “ concealment ” of the property on her part, within the meaning of said section 7, of the statute, and the only question was one of “ embezzlement” of the property in question by the defendant, within the meaning of the statute in question.
Such was the condition of things when the defendant was brought before the probate court, and subsequently before the circuit court, to answer said charge of embezzlement by the said administrator, and the circuit court gave, at defendant’s request, the following instruction:
“4. It is necessary, in this case, for the plaintiff to prove that the defendant has embezzled or concealed the property of W. H. Eans, deceased, charged in the affidavit, and an open and notorious possession of the property, under claim of ownership, is neither embezzlement nor concealment, within the meaning of the law, and if the court believes, from the evidence, that defendant is in the open and notorious possession of the property named in the affidavit under claim of ownership, then the county court has no jurisdiction, and the complaint ought to be dismissed.”
The court, of its own motion, also, gave the following additional declaration of law :
“If the court finds, from the evidence, that the property alleged by the plaintiff to be concealed and embezzled by the defendant, Mrs. Eans, is held by her under claim or color of right, as her separate estate, and that to settle the respective rights of the administrator and the defendant to the property, an action at *608law or suit in equity is necessary, then the county court, as a probate court, had no jurisdiction to entertain this proceeding, and the complaint ought to be dismissed.”
And thereupon, the court accordingly refused to try the cause, and dismissed the' complaint for want of jurisdiction, from which the plaintiff appealed to this court, where the court on the first appeal rendered the opinion (79 Mo. supra), which, as well as that rendered on the second appeal, is here complained of for want of jurisdiction in said probate court. Is that complaint, under the admitted facts of the case, and the rulings of the trial court, when carefully considered, well founded ? It seems to me, clearly not. When, carefully considered, the undisputed facts and face of the papers themselves, make out, at least, a prima-facie case of embezzlement against the defendant, which the trial court could not ignore upon the simple claim of title and open possession of the property by the defendant, without some further inquiry as to its good faith and validity.
Such a claim on her part, without more, it seems to me, under the prima-facie case thus made by the admitted facts themselves, could not justify the probate court in refusing to try the case, for the sole purpose of ascertaining her guilt or innocence of the embezzlement charged, and dismissing the complaint as it did ; nor could such a claim, of itself, deprive the court of its jurisdiction and duty, for the purpose aforesaid, to hear and try whether her said claim was in fact in good faith and well founded, or a mere pretence. If it could, all .that a defendant, when brought before the court to answer such a charge, would have to do would be simply to interpose a claim of title and open possession, and thereby deprive the court of all jurisdiction to inquire into its truthfulness or validity for the purpose aforesaid. Such, manifestly, is not the law. And that, *609when carefully examined, is just what the trial court did in this instance, and nothing more.
Under the last of the instructions heretofore set forth, the court manifestly held, that if the property alleged to be concealed and embezzled by defendant, is held by her under claim or color of-right as her separate property, and that to settle the respective rights of the administrator and defendant to said property, an action of law or suit in equity is necessary, then the court has no jurisdiction to entertain this proceeding, and the complaint ought to be dismissed.
It is not very clear exactly what the court meant by this instruction, but if it means (as it appears to mean), “ that if an independent action at law or suit in equity is necessary to settle the respective rights of the administrator and defendant to the property in question,” then the probate court has no jurisdiction to entertain the proceeding in question, then the instruction is misleading and erroneous, for that was not the question before it. The sole question was, was the defendant guilty of embezzlement; that is, had she “fraudulently appropriated to her own use, money or • property entrusted to her care by another.” Bouvier’s Law Diet., page 586 ; Webster’s Diet., page 439.
This proceeding, it must be remembered, is gram-criminal in its nature ; its object and purpose being to discover and compel the surrender of property, so fraudulently misappropriated, to the party having a right thereto. If it appears that the plaintiff ’ s intestate had no title to the property, its embezzlement is no concern of his, and he has no right to aslt or compel its surrender by defendant, and the court, in that case, should find for defendant. Or if it appears that defendant’s appropriation of the property to her own use is not fraudulent., but in good faith, under claim of valid title thereto, then she should be acquitted of the embezzlement charged and should not be compelled to surrender *610the property to plaintiff, and the, finding should be for defendant. This was the controlling and only question before the probate court, or the circuit court on appeal de novo.
It makes no difference, in such case, whether “ an action at law or suit in equity,” might be necessary to settle the respective rights of the administrator and defendant in case either of them was suing the party in possession of the bank deposits, the party making the promissory note, or the party holding the technical legal title to the real estate, or the like. That is not this case, nor the object of this quasi-criminal proceeding. The real and only questions before the court, under these proceedings, are whether the deceased had title to the property, and whether the defendant was guilty of embezzlement, or had fraudulently misappropriated the same to her own use, or held the same in good faith upon a valid right or title thereto. These were the only questions properly involved in this proceeding in the court below, and these are the only questions actually decided, or attempted to be decided, by this court, when the case was here for review on first appeal.
The cause was accordingly re-tried, and there was a finding and judgment for the defendant under certain instructions there set out, from which the plaintiff again appealed to this court, and the only question before the court on the second appeal, was whether those instructions, so set out, properly and" fairly submitted that question to the jury. On this point, the court, in its opinion on the second appeal, now under review, uses this language: “ An inspection of the instructions thus given shows that they are explicitly directed, almost solely and exclusively, to the question of intent and fact mentioned in the former opinion on that subject, and in our opinion, they fairly and properly submitted that question to the jury.” And for *611that reason, the judgment of the court on the second trial was affirmed accordingly on the second appeal.
It thus appears that the question of jurisdiction was not discussed in the second opinion, and was therein only referred to by way of attempt to re-state, in somewhat inaccurate and perhaps misleading terms, what was held on that subject in the first opinion, and also what was said in reference to the nature of this contest and struggle between these parties, etc. In the latter opinion, the question of jurisdiction was assumed to be settled by what was said in the first opinion, and there was no attempt to re-argue that question.
A careful examination of the opinion on first appeal (79 Mo. 53, supra), will show that the case was there made to turn upon the question of jurisdiction in the probate court, and that question, in its'turn, was also made to turn upon the question of the ownership of the property in dispute, and that the only purpose of inquiry into these matters, by the probate court, was to determine whether the defendant was guilty of embezzlement within the meaning of section 7 of the statute, supra, and if so, to compel the surrender of the property, if still in her possession or control, to the administrator for the purpose of administering said estate. This was the only legitimate object of those proceedings, and this the sole legitimate purpose of the defense made by the defendant thereto.
It is perfectly manifest that the proceeding and the defense thereto, was neither an ‘ ‘ action at law or suit in equity * * * to settle the respective rights of the administrator and the defendant to the property,” as contemplated by the circuit court, in the instruction given on its own motion; and it is equally manifest, that if it had been, then, in that event, the probate court would have had no jurisdiction of the cause. For this purpose, it is conceded that the probate court had no jurisdiction, and that parties wishing to litigate and enforce their, rights *612to the bank certificates of deposit, certificates of bank stock, promissory notes, deeds of trust, real estate mentioned in the title deeds, money and other property thus outstanding, would have to resort for relief to jurisdictions other than the probate court. But that, as has been shown, is not this case.
A careful examination of the opinion, when the case was here on the first appeal (79 Mo. 53, supra), will verify these positions. In that case, pages 64, 65, the court, treating of proceedings under section 7 of the administration law in question, use this language: “In these proceedings, the question (of title) is necessarily averred in the affidavit, and when its allegations are denied, as in this case, necessarily involved in the issues to be tried. Without title in the intestate, the administrator clearly has no standing in courtand when the defendant is the real owner, he or she certainly ought to be allowed to show that fact to defeat a recovery or conviction. In the case at bar, the question between the administrator and the defendant was as to the ownership of the property in controversy. The plaintiff, on the one hand, claimed that, permitting the husband to sell said projaerty, receive the money therefor, and use the same in his business during the period of time and in the manner indicated by the facts in evidence, was of itself, an appointment and disposition of the property by the wife in favor of the husband, within the meaning of the marriage contract itself. • The defendant, on the other hand, denies this proposition, and insists that when there is a marriage contract like this, between husband and wife, and no trustee is appointed by the instrument itself, the law makes the husband trustee for the wife, and, like any other trustee, the husband can reap no benefit to himself by the use of the property; or acquire title thereto by investing the same or its proceeds in his own name, without her assent thereto, and therefor, and that, in point of fact, she made no such appointment or disposition, and that the property and its proceeds are' still *613rightfully hers. Whether the property has been thus appointed or disposed of, or still remains the separate property of the wife, as contemplated by the marriage contract, is, at most, a question of intent and fact tobe found by the jury, or the court, accordingly as the same is tried, under all the facts and circumstances in evidence, in connection with the marriage contract itself. Under the statute in question, we think the probate court had jurisdiction to hear and decide these questions and others properly arising in the case, in the summary manner pointed out; and that it was error in the circuit court, on appeal, to dismiss the complaint for want of jurisdiction ; and that it should have proceeded to hear and decide the question, under proper instructions or declarations of law, applicable to the case made by the facts as they shall appear in evidence at the trial.” For these reasons, the judgment of the circuit court was reversed and the cause remanded, for further proceedings in conformity to the opinion then rendered.
The fault of the instruction given at defendant’s request is that it makes the embezzlement with which she is charged in these proceedings, to depend on the openness and notoriety of her claim and possession of the property, rather than its good faith and validity. The error of the instruction given by the court on its own motion, is that it misapprehends the question at issue, on the trial of the embezzlement charged in these proceedings against the defendant, as well as the office and object of proposed inquiry into the good faith and validity of her said claim of title to the property in dispute. The only purpose and office of the proceedings in this case, was to try whether the defendant was guilty of the charge of embezzlement preferred against her, and if so, to' compel its surrender. Said proceeding, as heretofore said, was neither “an action at law or suit in equity” to settle and enforce the respective rights of the administrator and defendant to the property in dispute, as contemplated by said instruction; and if it had *614been, as before said, it is conceded that the probate court would have had no jurisdiction to entertain such an action or suit. Besides that, the plaintiff will not now, at this late date, be heard to complain of the court’s having done that which, all along heretofore, he has claimed it should have done.
For these reasons, the rulings of the court on first and second appeals on the question of jurisdiction, as herein explained and construed, as well as the affirmance of the judgment on re-trial, are adhered to, and it is accordingly so ordered. These proceedings and the rulings of the court thereon, we need scarcely add, are manifestly without prejudice to the rights of either party in any proper suit, brought or pending in any proper court, to enforce their respective claims ; since it would then be the right and duty of such court to declare the correct legal principles applicable to such controversies and the facts of the case, as the same may appear in evidence at such trial.
Black and Barclay, JJ., concur; Barclay, J., in the result. Sherwood and Brace, JJ., concur specially and will give their views hereafter.