On Relators’ Motion for a Rehearing or to Transfer Cause to the Supreme Court of Missouri
Relators, in their motion for a rehearing or transfer, claim that the court in its opinion erred in finding that there is no evidence that the estates of Lucille and Emil are indebted to each other or that litigation between them is pending or contemplated or that in anywise there is any conflict between the interests of the two estates and further erred in failing to find that Mary Jane is not a suitable and competent person to act as administratrix.
The conflict is said to arise out of two circumstances: (1) the circumstance that Lucille as executrix collected rents on Emil’s real estate for which she did not account by settlements filed in Emil’s estate, and that Mary Jane has collected such rents from the death of Glover Dowell, successor trustee, in February, 1953 to date, ■which rents are not accounted for. Relat-*186ors say that Mary Jane as administratrix of Lucille’s estate will be required to file an accounting with herself as administratrix of Emil’s estate for rents collected by Lucille, and for rents collected by Mary Jane prior to her appointment as administratrix, and that in making such accountings Mary Jane will be representing absolutely conflicting interests of the two estates; (2) the circumstance that there is a substantial controversy between the creditors of Emil’s estate and the heirs of Kate over certain real estate; that the creditors proved that Emil owned the entire fee and not merely a one-half interest therein; that Mary Jane claims an ownership in the disputed one-half interest; that as administratrix of Emil’s estate Mary Jane would be required to file an action against herself to quiet title to the one-half interest, as a result of which she would be in an irreconcilable position of absolute conflict in undertaking the duties of administratrix.
In reviewing the evidence on this motion we are still unable to discover any conflict of interests between the estates of Lucille and Emil. The claim that Mary Jane will find herself in the embarrassing and impossible position, as administratrix of Emil, of accounting with herself as administratrix of Lucille, as to the rents collected by Lucille, is not supported or borne out by the evidence. Again the pleadings have been scanned, the transcript of the oral testimony searched, and all of the documentary exhibits examined one by one, but nowhere is there a scintilla of evidence that Lucille collected any rents for which she did not account. During the course of the hearing before the probate judge, counsel for relators persistently charged that Lucille had collected unaccounted-for rents, but he neglected to introduce any proof of the fact. We cannot convict the probate judge of an abuse of discretion for not determining the case upon the basis of facts which were not established by evidence.
The rents collected by Mary Jane provide no impediment to her appointment as administratrix. The rents either were or were not assets of the Estate of Emil in her hands at the time of her appointment. If not assets (for lack of a previous order on the executrix or successor executor directing the rental of the real estate for the payment of debts), the rents accruing after the death of the successor executor would follow the principal estate and belong to Emil’s heirs, In re Bartels’ Estate, 238 Mo.App. 715, 187 S.W.2d 348, loe. cit. 350, unless the fact that the previous accounting of Lucille for the rents would change the situation, a point which it is not necessary for us to decide. If the rents were assets of the estate, it would be the duty of Mary Jane to collect and take such money into her possession, Section 462.010 RSMo 1949, V.A.M.S. and inventory the same as an asset of the estate. Section 462.020 RSMo 1949, V.A.M.S. In neither of these contingencies do we perceive any conflict of interests disqualifying Mary Jane. The latter swore in her application for letters that she would “make a perfect inventory of the assets of said estate not yet administered upon” and faithfully perform all things required of her by law touching the administration. In her testimony she testified that she would follow the advice of her lawyer and the orders of the probate judge in administering the estate. No abuse of discretion is indicated in this connection.
With reference to the point that relators’ claims as creditors to a one-half interest in certain real estate are in conflict with the claims of the heirs of Kate, including Mary Jane, once again the evidence does not support relators’ contentions. A one-half interest in the following real estate was listed in the inventory of Emil: four, tracts of 40, 80, 80 and 160 acres, respectively, in Section 13, Township 47, Range 5, and three tracts of 20, 80 and 160 acres, respectively, in Section 1, Township 48, Range 5. There was evidence that Kate was the record owner of a one-half interest in this land, and that it was not included in the inventory of the assets of her estate. But there is no evidence in the record, oral or documentary, that Kate’s heirs now claim a one-half interest in this land, and there is no evidence that she deeded it to *187Emil. Although Mary Jane testified that she owned a one-third interest in the lands •of which Kate died seized, she did not claim that Kate died seized of the lands above described, or that she or any of the other heirs of Kate had any interest whatever in them. Nor was it shown that relators had .asserted, or that Mary Jane had denied, re-lators’ claim that the Estate of Emil owned the entire interest in these lands. There -was a failure of proof that there is any real and substantial controversy as to the •ownership of a one-half interest in these lands.
Nor does the evidence indicate that there is reasonable and probable cause to believe that the entire interest in the real estate belongs to the Estate of Emil. There was evidence that Emil paid taxes ■on and was in possession of the whole, but no evidence that he did so under a claim of ■ownership of the whole. The record title to •a one-half interest is in Kate, and there is no evidence of any deed from Kate to Emil. In a suit to quiet title relators, relying upon a lost deed, would be obliged to establish its original existence, its loss and the material parts of it by clear and convincing ■evidence. 74 C.J.S., Quieting Title, § 81, p. 128. Although in this proceeding it was not necessary to establish that the Estate of Emil owned the whole interest in the property, Davis v. Roberts, supra, 226 S.W. loe. cit. 664, relators, in showing that there was reasonable and probable cause to believe that the whole interest belonged to the estate, were required to prove more than appeared here, where the missing link is largely based upon the speculative opinion of a lawyer that there is an outstanding and unrecorded deed from Kate to Emil. Other possibilities are that Kate conveyed her interest by an unrecorded deed to some third person, or that she died seized of her interest and that by mistake it was not included in her inventory. We find no abuse of discretion on the part of the probate judge in failing to find under this fragmentary and inconclusive evidence that Mary Jane was disqualified on the ground of conflicting interests.
Relators are anticipating a situation which has not yet developed. If and when a conflict of interests arises between the two estates Mary Jane should relinquish her administratorship as to one of them. Upon the development of a real and substantial controversy between Mary Jane and the creditors of the Estate of Emil based upon hostile, rival claims to the one-half interest in the real estate, she should stand aside for the appointment of another to protect the interests of the estate against her antagonistic claims. If she refuses voluntarily to do so her letters can be revoked under Section 461.500 RSMo 1949, V.A.M. S. for unsuitability to execute the trust. Until such conflict and controversy actually arise, however, Mary Jane is qualified, and enjoys priority of right, to act as ad-ministratrix.
The other points raised by relators in their motion for a rehearing constitute mere reargument of points fully analyzed in the original opinion.
The Commissioner therefore recommends that the motion for a rehearing or to transfer the cause to the Supreme Court of Missouri be overruled.
PER CURIAM.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
Accordingly, relators’ motion for a rehearing or to transfer cause to the Supreme Court of Missouri is overruled.
ANDERSON, P. J., and SAM C. BLAIR and FRANKLIN FERRIS S, Special Judges, concur.