Vories, Judge,
delivered the opinion of the court.
On the 10th day of June, 1872,' an instrument was presented, purporting to be the last will and testament of John B. Helm, then deceased, in the Hannibal Probate Court, to be proved and probate thereon granted.
The instrument consisted of an original instrument executed in the year 1867, and eight supplemental instruments or codicils, executed at different times within the two years next preceding the death of Helm.
The codicils materially modified and changed the disposition of the property as made by the original will. The Probate Court admitted to probate the original instrument as the last will of Helm, and rejected the eight other instruments purporting to be codicils. The Probate Court then appointed Mary A. Helm, the widow, administratrix of the estate, with the will annexed as it had been admitted to probate, the executor named in the will being dead, and issued her letters of administration accordingly, after which she qualified as such.
[428]*428Immediately after this, the administratrix, so appointed, in connection with others interested in the estate, filed her petition in the Hannibal Court of Common Pleas, under the provisions of section 29 of the statute concerning Wills (General Statute, 530), praying to have the instrument as originally presented in the Probate Court proved and allowed.
All parties in interest were made parties to this proceeding; part of them were personally summoned to appear, and others were notified by publication.
Those personally served appeared and answered, denying that the instrument offered to be proved was the last will and testament of .the deceased.
After the commencement of the proceedings of Mrs. Helm and others, in the common pleas court, Joseph J. Johnson and others, parties interested in the estate, made their motion in the Probate Court, asking that the letters with the will annexed, before granted to Mrs. Helm, be revoked and that an administrator be appointed during the contest concerning the will in the commorn pleas court. This motion was sustained and the court made an order in terms revoking the letters previously granted to Mrs. Helm, and granted letters of administration, during the continuance of the contest, to Alfred W. Lamb. Mrs. Helm at the time objected to these orders made by the Probate Court, and her objections being overruled, she excepted. The widow, Mrs. Helm, then made her motion in the Probate Court, to set aside the order appointing Lainb administrator, pending the contest-of the will, and to grant administration, pendente lite, to her. This motion was overruled by the court.
Prom this action of the court of common pleas, the widow has sued out her writ of error, and has brought the case to this court.
The controversy in this case, as has been seen, grows out of an attempt on the part of Joseph J. Johnson and others, made in the the Hannibal Probate Court, to have the letters of administration with the will annexed, previously granted to Mrs. Helm on the estate of her husband, John P. He'lm, [429]*429deceased, revoked, and another person appointed as administrator, during a contest in reference to the validity of the will, then pending in the Hannibal court of common pleas, under the provisions of the 29th section of the statute of this State, concerning wills.
The Probate Court revoked the letters of administration, with the will annexed, previously granted to Mrs. Helm, and appointed Alfred W. Lamb administrator, during the pendency of the contest, and afterwards refused to revoke the same and appoint Mrs. Helm, the widow, as administratrix during said contest, upon a motion filed by her for that purpose. From these orders of the Probate Court, the widow appealed to the Hannibal court of common pleas, where the order of the Probate Court, in granting the letters to Lamb, during the litigation or contest, and refusing such letters to the widow was affirmed, but the order revoking the letters previously granted to the widow with the will annexed, was reversed, and in lieu thereof, an order was made by the common pleas court, merely suspending her letters during the contest.
It is insisted here, that the court of common pleas erred in affirming the letters granted to Lamb, and in affirming the action of the Probate Court in refusing to grant said letters to the widow; that the Probate Court had no authority to appoint an administrator, pendente lite, where a will had been probated, and an administratrix appointed with the will annexed; that the authority to appoint an administrator during the time of the contest of a will, provided for in the 13th section of the first article of the act respecting executors and administrators, (Wagn. Stat., p. 72) is not applicable to contests under the 29th section of the statute concerning Wills, but only applies to contests in the Probate Court, before there is any probate of the will or any letters granted. And it is further insisted, that if such an appointment could be made during such a contest, that the widow is first entitled to the appointment, under the preference given her under the 6th section of the first article of. the act respecting Executors and Administrators, (Wagn. Stat., p. 72).
[430]*430The first question presented for consideration in this case, was fully presented and discussed in the case of Rogers vs. Dively, administrator, (51 Mo., 193). In that case, as in this, the will had been admitted to probate by the court having probate jurisdiction, and letters testamentary had been granted to the executrix named in the will; and in that case, as in this, after the probate of the will in the Probate Court, and the grant of letters testamentary, a proceeding was commenced in the proper court, under the 29th section of the statute concerning Wills, to contest the will, after which a motion was made in the Probate Court to revoke the letters testamentary, before granted to the executrix of the will, and to suspend her authority as such executrix, and asking for the appointment of an administrator, pendente lite. The Probate Court sustained the motion, suspended the letters testamentary before granted, and appointed Dively administrator, during the time of the contest of the will. The executrix appealed to the Circuit Court, where the action of the Probate Court was sustained, and the case brought to this court, where the judgment of the Circuit Court was affirmed, this court holding, that the 13th section of the act before referred to, was enacted mainly, if not solely, in view of the proceedings which are authorized by the statute concerning Wills. Therefore, that question need not be further noticed.
It is insisted, however, that there is a distinction to be taken between the present case and the case of Rogers vs. Dively in this, that in that case the executrix in the will had been appointed and qualified to act by the Probate Court, and that she was acting not merely by the authority she received from her letters testamentary, but that her powers were mainly derived from her appointment in the will, and that therefore while the will was in contest, her powers might properly be suspended, while, in the present case, Mrs. Helm was acting by virtue only of the power derived from her appointment by the Probate Court, and that she would still be qualified to act as administratrix of the estate, with the will annexed, notwithstanding the contest of the will, and that wherever there [431]
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Vories, Judge,
delivered the opinion of the court.
On the 10th day of June, 1872,' an instrument was presented, purporting to be the last will and testament of John B. Helm, then deceased, in the Hannibal Probate Court, to be proved and probate thereon granted.
The instrument consisted of an original instrument executed in the year 1867, and eight supplemental instruments or codicils, executed at different times within the two years next preceding the death of Helm.
The codicils materially modified and changed the disposition of the property as made by the original will. The Probate Court admitted to probate the original instrument as the last will of Helm, and rejected the eight other instruments purporting to be codicils. The Probate Court then appointed Mary A. Helm, the widow, administratrix of the estate, with the will annexed as it had been admitted to probate, the executor named in the will being dead, and issued her letters of administration accordingly, after which she qualified as such.
[428]*428Immediately after this, the administratrix, so appointed, in connection with others interested in the estate, filed her petition in the Hannibal Court of Common Pleas, under the provisions of section 29 of the statute concerning Wills (General Statute, 530), praying to have the instrument as originally presented in the Probate Court proved and allowed.
All parties in interest were made parties to this proceeding; part of them were personally summoned to appear, and others were notified by publication.
Those personally served appeared and answered, denying that the instrument offered to be proved was the last will and testament of .the deceased.
After the commencement of the proceedings of Mrs. Helm and others, in the common pleas court, Joseph J. Johnson and others, parties interested in the estate, made their motion in the Probate Court, asking that the letters with the will annexed, before granted to Mrs. Helm, be revoked and that an administrator be appointed during the contest concerning the will in the commorn pleas court. This motion was sustained and the court made an order in terms revoking the letters previously granted to Mrs. Helm, and granted letters of administration, during the continuance of the contest, to Alfred W. Lamb. Mrs. Helm at the time objected to these orders made by the Probate Court, and her objections being overruled, she excepted. The widow, Mrs. Helm, then made her motion in the Probate Court, to set aside the order appointing Lainb administrator, pending the contest-of the will, and to grant administration, pendente lite, to her. This motion was overruled by the court.
Prom this action of the court of common pleas, the widow has sued out her writ of error, and has brought the case to this court.
The controversy in this case, as has been seen, grows out of an attempt on the part of Joseph J. Johnson and others, made in the the Hannibal Probate Court, to have the letters of administration with the will annexed, previously granted to Mrs. Helm on the estate of her husband, John P. He'lm, [429]*429deceased, revoked, and another person appointed as administrator, during a contest in reference to the validity of the will, then pending in the Hannibal court of common pleas, under the provisions of the 29th section of the statute of this State, concerning wills.
The Probate Court revoked the letters of administration, with the will annexed, previously granted to Mrs. Helm, and appointed Alfred W. Lamb administrator, during the pendency of the contest, and afterwards refused to revoke the same and appoint Mrs. Helm, the widow, as administratrix during said contest, upon a motion filed by her for that purpose. From these orders of the Probate Court, the widow appealed to the Hannibal court of common pleas, where the order of the Probate Court, in granting the letters to Lamb, during the litigation or contest, and refusing such letters to the widow was affirmed, but the order revoking the letters previously granted to the widow with the will annexed, was reversed, and in lieu thereof, an order was made by the common pleas court, merely suspending her letters during the contest.
It is insisted here, that the court of common pleas erred in affirming the letters granted to Lamb, and in affirming the action of the Probate Court in refusing to grant said letters to the widow; that the Probate Court had no authority to appoint an administrator, pendente lite, where a will had been probated, and an administratrix appointed with the will annexed; that the authority to appoint an administrator during the time of the contest of a will, provided for in the 13th section of the first article of the act respecting executors and administrators, (Wagn. Stat., p. 72) is not applicable to contests under the 29th section of the statute concerning Wills, but only applies to contests in the Probate Court, before there is any probate of the will or any letters granted. And it is further insisted, that if such an appointment could be made during such a contest, that the widow is first entitled to the appointment, under the preference given her under the 6th section of the first article of. the act respecting Executors and Administrators, (Wagn. Stat., p. 72).
[430]*430The first question presented for consideration in this case, was fully presented and discussed in the case of Rogers vs. Dively, administrator, (51 Mo., 193). In that case, as in this, the will had been admitted to probate by the court having probate jurisdiction, and letters testamentary had been granted to the executrix named in the will; and in that case, as in this, after the probate of the will in the Probate Court, and the grant of letters testamentary, a proceeding was commenced in the proper court, under the 29th section of the statute concerning Wills, to contest the will, after which a motion was made in the Probate Court to revoke the letters testamentary, before granted to the executrix of the will, and to suspend her authority as such executrix, and asking for the appointment of an administrator, pendente lite. The Probate Court sustained the motion, suspended the letters testamentary before granted, and appointed Dively administrator, during the time of the contest of the will. The executrix appealed to the Circuit Court, where the action of the Probate Court was sustained, and the case brought to this court, where the judgment of the Circuit Court was affirmed, this court holding, that the 13th section of the act before referred to, was enacted mainly, if not solely, in view of the proceedings which are authorized by the statute concerning Wills. Therefore, that question need not be further noticed.
It is insisted, however, that there is a distinction to be taken between the present case and the case of Rogers vs. Dively in this, that in that case the executrix in the will had been appointed and qualified to act by the Probate Court, and that she was acting not merely by the authority she received from her letters testamentary, but that her powers were mainly derived from her appointment in the will, and that therefore while the will was in contest, her powers might properly be suspended, while, in the present case, Mrs. Helm was acting by virtue only of the power derived from her appointment by the Probate Court, and that she would still be qualified to act as administratrix of the estate, with the will annexed, notwithstanding the contest of the will, and that wherever there [431]*431is an administrator, qualified to act, already appointed, no administrator, pendente lite, can be appointed. I do not think that this distinction has much-force. It is, to my mind more apparent than real. Executors in this State do not receive their authority to act, from the will alone, but they, as well as administrators, have to give bond and file the affidavit required bylaw, before they are fully installed in office. The executor' does not, under our laws, become the legal owner of the personality of the deceased, by virtue of his nomination in the will, he in ust be regularly qualified and commissioned, under our statute, before he becomes fully authorized to act as executor.
The will points out the person to act, but his authority to act is mainly derived from his appointment.
The law points out the husband or widow of the deceased as the first entitled to administer, but their right to do so, and their power to act, still depend on the action of the Probate Court, and the 11th section of the administration act. Where there are two or more persons appointed co-executors in a will, the law expressly forbids any from acting or intermeddling with the estate except those who have given bond, (Stagg vs. Green, 47 Mo., 500).
It will be seen, therefore, that the power of an executor, under our law, to act as such, is derived not so much from the will of the testator, as from the appointment of the court, and a compliance with the law. By the 13th section of the administration law before referred to, it is provided that, “if the validity of a will be contested, or the executor be a minor, or absent from the State, letters of administration shall be granted, during the time of such contest, minority or absence, to some other person, who shall take charge of the property, and administer the same according to law, under the direction of the court, and account for, pay and deliver all the money and property of the estate to the executor or regular administrator, when qualified to act.” It is insisted that the words “ other person,” as used in the foregoing section, mean a person different from the executor named in the will) and [432]*432the administratrix, with the will annexed, is another person within the meaning of the law, and that, therefore, there was no power vested in the court to appoint another administrator to act .during the contest of the will.
It may be that by a technical construction of the section, the words, “ other persons,” would mean some person different from the one named as executor in the will, but the most rational and practical construction of the language used by the legislature, would seem to be that a person other-or different from the one charged with the execution of the will, shall be apoiuted to take charge of the estate during the contest.
When a contest is commenced under our statute concerning Wills, either to establish a will which has been rejected by the Probate Court, or to contest the validity of a will which has been allowed and probated in the Probate Court, the effect is the same as if an appeal had been taken from the action of the Probate Court to the Circuit Court, where the question could be tried anew, just as if no action had ever been taken in the Probate Court.. The party who relies on or asserts the validity of the will, must prove it up in the same manner and to the same extent as if no action had been taken by the Probate Court; in fact, the action of the Probate Court becomes wholly void by such contest, so far as the efficacy of the will is concerned. The effect of the contestant’s petition and the proceedings thereunder, was to transfer the whole matter to the Court where the proceédings are pending. (Benoist vs. Murrin, 48 Mo., 48; Tingley vs. Cowgill, 48 Mo., 291; Williams vs. Robinson, 42 Verm., 658; 15 Wis., 511.)
In such case, the will being of.no force or effect until it is proved and allowed in the court where the contest is pending, it would be wholly inconsistent with the rights of the parties for the executor to proceed to administer the estate, and carry out the provisions of a will while it was being contested, and might never be established; and I am unable to see the difference between the rights and powers of an executor and an administrator with the will annexed, in such case. [433]*433If the executor proceeds, he proceeds to parry out the provisions of a will that has not been proved or probated. If the administrator with the will annexed, proceeds, he must necessarily carry out the provisions of the will, and in the case now being considered, the executrix would be administering and carrying out the provisions of the will as probated in the Probate Court, while she, at the same time, is insisting in the common pleas court, that the will, as probated, is not the will of the deceased, but that it with eight codicils, constitutes the true will. This would be wholly inconsistent; and hence, another person should be appointed to take charge of the estate under the orders of the Probate Court, until it is determined whether there be a will or not, and what the will is.
But it is further contended, that if the Probate Court had the right to appoint an administrator to act during the contest, the widow was entitled to be preferred, and had a right to be appointed under the 6th section of the administration law, (Wagn. Stat., 72). That section reads as follows: “ Letters of administration shall be granted, first, to the husband or wife, and secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or clerk in vacation shall believe will best manage and preserve the estate.”
This section refers to the appointment of general administrators, who are to administer and distribute the estate, and has no reference to special administrators to preserve the estate, under the order of the court, as provided for in the 13th section before referred to. Such special administrators occupy more nearly the position of a receiver, who acts under the directions of the court, than they do the position of a general administrator, and it is believed that such appointments were not contemplated by, or included in, the provisions of the 6th section above referred to. This disposes of the main points made in this case. There were some minor points made, but it is believed that they are either included in, or governed [434]*434by, the points already noticed, or are not material to a proper disposition of the case.
Judgment affirmed.
Judge Napton, having been of counsel in the case, did not sit; the other judges concur.