State Ex Rel. Gott v. Fidelity & Deposit Co.

298 S.W. 83, 317 Mo. 1078, 1927 Mo. LEXIS 645

• Court: Supreme Court of Missouri
• Decided: September 16, 1927
• Status: Published

Opinions

Action in the Circuit Court of Jackson County against surety on administrator's bond, to recover a sum representing the balance on hand for distribution in the estate of Thomas A. Mathews, deceased, as shown by the final settlement of his administrator in the Probate Court of Jackson County. The petition prayed also for a ten per cent penalty for vexatious delay and a reasonable attorney fee. The sole defendant is a corporation engaged in the indemnity bonding business under the insurance laws of Missouri. The administrator was not joined as a defendant in the amended petition on which the case was tried. The relator, or plaintiff, is the widow of the intestate. She had a verdict for $7,505.90 debt. $597.82 interest, $350 penalty and $1500 attorney fee. From the judgment on the verdict the defendant has appealed.

The deceased left no lineal descendants. The widow claims the entire personal estate as sole distributee on the ground that he died a resident of Kansas. Under Section 253. Revised Statutes 1919, the personal estate of a non-resident decedent descends according to the laws of his domicile, and Section 3842. General Statutes of Kansas, provides that the estate of a deceased husband shall go to his widow if he leave no issue. The defendant-appellant maintains the intestate was, in fact, a resident of Missouri, and that the widow is entitled only to one-half the estate, under Sections 321 and 325, Revised Statutes 1919.

While the respondent's petition alleged the deceased lived in Kansas, her course and theory of trial did not open this issue on its merits. The pleaded contentions on which she stood were (a) that the Jackson County Probate Court, in granting letters of administration on the estate, found that the last residence of the intestate was in Kansas, and (b) that, later, the same court adjudged her to be sole distributee for that reason, in passing on an application for an order of partial distribution filed by the administrator. She asserts these two judicial acts were conclusive determinations of the crucial question of residence, and that the latter thereby became res judicata as against the defendant surety.

The trial court took this view of the case, excluded the defendant's proffered testimony on the issue of fact, and peremptorily instructed the jury to find for the plaintiff, submitting only the issue as to whether the appellant had been guilty of vexatious delay. The defenses interposed by the appellant will be noticed in the course of the opinion. It should be remembered, however, that the answer did not sound in equity, and that the cause was tried to a jury as a law case.

The facts must be reviewed a little more fully before taking up the legal questions. The intestate, Thomas A. Mathews, died intestate on or about July 26, 1920, at Mound City, Kansas. An administration of his estate was commenced in the Probate Court of Jackson County, Missouri, ten days thereafter, on August 5, 1920, when his brother W.G. Mathews filed a verified application for letters. The application stated the intestate left no lineal descendants; that his widow was a resident of Mound City, Kansas; that his heirs (naming three brothers, one sister, eight nieces and three nephews) were non-residents of Missouri, except the applicant, who lived in Kansas City, Missouri. Regarding the domicile of the deceased and the location of his estate, the application recited he was a resident of Mound City, Kansas, at the time of his death, and that he owned real estate in Missouri of the probable value of $9,000. No findings of fact were contained in the order of appointment, and there was no appearance by any of the parties in interest, except the administrator, so far as the record shows. The bond upon which this suit is based was given later, but no question is raised concerning its application to the proceedings involved.

The validity of the appointment of the administrator by the foregoing proceeding is conceded, but the appellant offered, at the trial below, to prove that in signing the application the administrator understood and meant the recital therein concerning the deceased's residence in Kansas to refer to the place of his death and not to his domicile, and that the deceased, in fact, had never been a resident, citizen or voter of that State. This testimony, as already stated, was excluded by the trial court; we set it out here for a better understanding of the matter, although no point has been preserved on this appeal respecting the rejection of the evidence.

On June 30, 1921, through his attorney, S.L. Mathews, another brother of the deceased, the administrator filed an application for an order authorizing him to distribute $5,000 to the collateral heirs, to offset a payment of the same amount previously made to the widow, and for an allowance for attorney fees. This application was taken up for consideration by the probate court on November 9, 1921, during the September term. At the time Hon. Ben R. Estill of the Kansas City bar was sitting as judge pro tem. in the absence of Judge GUINOTTE, the regular judge, pursuant to Sections 2563-66. Revised Statutes 1919. The testimony affirmatively shows the administrator and his brother, attorney S.L. Mathews, were present in person, and the widow was present by her attorney. Evidence was heard, arguments made, briefs submitted and the cause taken under advisement.

From and after the hearing on November 9, 1921, nothing further was done in regard to the application at that term of the probate court, or at the next term, but on April 26, 1922, during the February term, it happened that Judge ESTILL was again presiding as judge pro tem. On this day, Judge ESTILL called up the application in the absence of the parties, except the widow's attorney, and entered an order finding that the intestate was a resident of Kansas when he died; that his heirs were not entitled to any part of the estate personalty and that the widow was entitled to the whole of said estate. It was accordingly ordered that the application for a partial distribution be denied, as was the allowance of attorney's fees "at this time." The order further directed the administrator to pay over to the widow all of the personalty of the estate located in Missouri, "after the payment of the necessary costs of administration."

The probate records and papers are silent as to whether the distributees of the estate were notified of the administrator's application for the foregoing order in accordance with Section 241, Laws 1921, page 115. The administrator and his brother. Attorney Mathews, both of whom were heirs and distributees, were permitted to testify that the only notice they had of the order was from a letter sent by the widow's attorney the next day, enclosing a copy of the order. No appeal was taken.

The administrator filed his final settlement, showing a balance of $7,505.90, on September 21, 1922. The probate court approved the settlement on the same day, finding the estate fully administered and all costs paid. It was ordered that the administrator pay over the balance in his hands "to the parties entitled thereto," and that on filing proper receipts he stand fully and finally discharged. No appeal from the order of final settlement was taken by any party in interest.

Other evidence was presented which may be referred to briefly. The plaintiff testified she had not been paid the money for which she was suing, and that the deceased left no lineal descendants. The Kansas statute already mentioned was introduced, and there was expert testimony concerning the reasonable value of the legal services of her attorneys. The appellant showed that the administrator and the heirs, through the administrator, had signified to the appellant surety their objections to the widow's receiving the whole personal estate. Much of the evidence offered by the appellant was excluded by the court, but it cannot be noticed, as no error in that regard is saved for review on this appeal.

I. (a) Appellant's most sweeping contention is that the circuit court had no jurisdiction of the action. It is urged on the theory that the probate court's order approving the administrator's final settlement was nugatory and void, insofar as the same purported to be an order ofIndefinite distribution: and that until the probate courtDistributees. determined the disputed question of the widow's interest in the personal estate by a proper order of final distribution, jurisdiction over the administration remained exclusively in the probate court and could not be transferred to the circuit court by a suit on the administrator's bond. Under the facts of this case, the direction in the order that the administrator pay over the balance in his hands to theparties entitled thereto is, as the appellant contends, either indefinite and meaningless, or else an attempt to invest the administrator with judicial discretion to determine the proper distributees and the amount of their interests. In either case it would be void. [24 C.J. sec. 1389, p. 523; 3 Woerner, American Law of Administration (3 Ed.) sec. 562, p. 1911; 4 Schouler on Wills, (6 Ed.) sec. 3426, p. 2760.] This was intimated in Morehouse v. Ware, 78 Mo. 100, 101, 103.

(b) Nevertheless, that part of the order approving the final settlement established conclusively that all expenses and probated demands had been paid in full, that any unpresented claims were barred, and that nothing remained to be done except for theSuit by administrator to distribute the balance on hand, InDistributee. these circumstances the widow can maintain her action without an order of distribution, and might do so without even a final settlement, the foregoing facts otherwise appearing. [State ex rel. v. Matson, 44 Mo. 305: State ex rel. v. Dickson, 213 Mo. l.c. 90-1, 111 S.W. 817: Kelley's Missouri Probate Law 65 Ed.) sec. 387, pp. 483-4.] When facts exist making it bona-fide necessary to retain the estate assets for further probate administration, an action such as the present would be premature, as is ruled in Clarke v. Sinks. 144 Mo. 454, 46 S.W. 199, cited by appellants, but the mere circumstance that the administrator differs with a distributee regarding the extent of her interest in the estate, will not deprive the circuit court of jurisdiction. [State ex rel. v. Grigsby, 92 Mo. 419, 5 S.W. 39.] This assignment is ruled against the appellant.

II. (a) The next question is whether the judicial determination of the intestate's place of residence, made by the probate court in granting letters, is conclusive in this collateral action. We think not. Let it be observed that the inquiry is continued to the application of the doctrine of res judicata or estoppel by record. The law of estoppel by conduct is not involved, because not invoked by the respondent though it would seem, if the appellant's contention be true that the intestate's residence was in Missouri, his wife's domicile would have followedEstoppel (Ware v. Flory, 199 Mo. App. 62, 201 S.W. 593, andby Conduct. as his widow she would have had the primary right to administer the estate under our statute (Sec. 7. R.S. 1919). The administrator could hardly foist himself into office by representing the deceased a resident of Kansas, and while thas intrenched later contend, on a question of distribution, the residence was in Missouri. [15 R.C.L. sec. 434, pp. 957-8.]

(b) Getting back to the question of estoppel by record, there are three (in a more limited sense, two) kinds of res judicata: (1) a former adjudication on the same cause of action between the same parties is conclusive in the second proceeding as to every issue of fact which was or might have been litigated in the first, under what is called estoppel by judgment:Res (2) a judgment between the same parties on aAdjudicata. different cause of action is binding as to facts actually decided, or in the absence of evidence as to the issues passed upon, is conclusive on the pleaded issues of fact, ultimate or supporting, necessarily determined in rendering the judgment, the rule being known as estoppel by verdict (In re Guardianship of Angela McMenamy, 307 Mo. 110, 270 S.W. 662: National Bank of Commerce v. Maryland Casualty Co., 307 Mo. 435, 270 S.W. 691; Crary v. Standard Inv. Co., 313 Mo. 456-7,285 S.W. 459); (3) and a judgment in rem is conclusive on the whole world.

(c) Testing the respondent's contention by these rules, it must be granted, as she argues, that the question of residence was a jurisdictional question determining the venue (Sec.Residence: 4, R.R. 1919), and that the decision thereof was anQuestion essential and integral part of the probate-courtof Venue. order. In some decisions the issue is treated as of a preliminary or collateral nature (Ewing v. Mallison,65 Kan. 484, 70 P. 369, 93 Am. St. 306; Concha v. Concha, 11 App. Cas. 541, 56 L.J. Ch. 257, 55 L.T.N.S. 522, 35 W.R. 477, 11 Eng. Rul. Cas. 22); but the question is one of fact, not of law, and in this State is held to be a vital part of the adjudication. [State ex rel. v. Shackelford, 263 Mo. 61-2, 172 S.W. 347; State ex rel. v. Mills, 231 Mo. 500, 133 S.W. 22.]

(d) It must be taken as further true that the probate court found the deceased lived in Kansas, for that fact, coupled with the fact that he owned real estate in Missouri (all or the greater part presumably in Jackson County), was the sole ground set up in the application, on which the order wasJurisdictional necessarily based (Secs. 7, 8, 14, R.S. 1919),Fact. and it must be assumed the court entertained jurisdiction on this the only ground presented for its exercise. [Brown v. Weldon, 34 Mo. App. 382; Johnson v. Ionia County, 202 Mich. 597, 168 N.W. 421.] There is no denying, too, the probate court was one of such rank and authority as that its decision on all such questions is invulnerable to collateral attack. [Johnson v. Beazley, 65 Mo. 264, 27 Am. Rep. 276; Wyatt, Admr. v. Wilhite, 192 Mo. App. 553, 183 S.W. 1107.] Many other cases might be cited. The law on these questions is clear. The infirmity in the respondent's contention is in another spot.

(e) In this State the appointment of an executor or administrator is made on an ex parte application without previous notice. (Sec. 14, R.S. 1919; Laws 1923, p. 110.) From its nature the proceeding is in rem. [1 Herman on Estoppel, sec. 327, p. 375.] Looking at the administration asEx Parte an entirety, the res is the property of theAppointment. deceased grasped through the personal representative as a court officer (Bartlett v. Hyde, 3 Mo. 490; 1 Woerner, American Law of Administration (3 Ed.) sec. 148, pp. 501-2); but in the preliminary proceeding for his appointment, the res is the status of the officer. [Thormann v. Frame, 176 U.S. 355, 44 L.Ed. 500; Gratiot County State Bank v. Johnson, 249 U.S. 248, 39 Sup. Ct. Rep. 263, 63 L.Ed. 587.] The point involved in the case at bar is as to the scope and effect of the record estoppel, regarding the probate court order as a judgment in rem, and bearing in mind there was no service upon or appearance by the respondent, and that such estoppels must be mutual. [State ex rel. v. Branch,134 Mo. 605; Bennett v. Gen. Acc. Corp., 213 Mo. App. 430,255 S.W. 1076; 34 C.J. sec. 1407, p. 988; 15 R.C.L. sec. 432, p. 956.]

(f) The statement that judgments in rem are binding on the whole world is true only in a restricted sense. The judgment establishing the status of a person or thing or the title to property is conclusive on everyone; but not so of the related findings of fact, no matter how necessary to theJudgment result. [Bigelow on Estoppel (6 Ed.) pp. 48-50, 254-6;in Rem. 1 Herman on Estoppel, sec. 338, p. 387; Tilt v. Kelsey, 207 U.S. 51, 28 Sup. Ct. Rep. 1, 52 L.Ed. 95; Brigham v. Fayerweather, 140 Mass. 411, 5 N.E. 265.] The effect on theres cannot be disputed, but to extend the finality of the judgment to its inducing conclusions of fact, when the same facts are later at issue in a collateral action not affecting the res, would be to make the judgment in rem operate in personam. This may not be done even as against the original parties in interest, much less against strangers to the former proceeding. [33 C.J. sec. 42, p. 1079; 15 R.C.L. sec. 85, p. 642; Graves v. Smith,278 Mo. 599, 213 S.W. 128; Pennoyer v. Neff, 95 U.S. 719, 24 L.Ed. 565.] Expressions in some cases that a judgment in rem binds "parties to the proceedings," (Myers v. International Trust Co.,263 U.S. 73, 44 Sup. Ct. Rep. 86, 68 L.Ed. 165) and "parties entitled to be heard" (Manson v. Williams, 213 U.S. 455, 29 Sup. Ct. Rep. 519, 53 L.Ed. 869) with respect to facts found, evidently are to be construed as referring only to those who legally could, and did, make themselves parties to the original proceeding in a personal sense by appearance, participation, etc. (Gratiot County State Bank v. Johnson, 249 U.S. l.c. 249). We shall have occasion presently to consider the effect of such intervention; what has just been said refers to judgments the efficacy of which arises solely from the fact that they are inrem.

(g) It follows that a finding on the question of the residence of the deceased, in an ex parte proceeding in rem for the appointment of an administrator, is not res judicata in a subsequent collateral action between the interested parties unless the issue be raised in the second proceeding for the purpose of attacking the title of the administratorCollateral to his office, or in some way impugning the formerAttack. adjudication with respect to the res — his status. All the authorities on the point are not harmonious, and in cases reaching the same result the grounds of decision seem to be different: but the trend of modern opinion is said to be in line with the conclusion herein expressed. [34 C.J. sec. 1663, p. 1173; Thormann v. Frame, 176 U.S. l.c. 355; Overby v. Gordon, 177 U.S. 221 et seq., 20 Sup. Ct. Rep. 603, 44 L.Ed. 741; Tilt v. Kelsey, 207 U.S. l.c. 51 et seq.; Dunsmuir v. Scott, 217 F. 202; In re Mesa's Estate, 87 Misc. 242,149 N.Y.S. 536.] Other illustrations of the inconclusive effect in collateral actions of probate findings of basic facts in the appointment of an administrator or executor, are cited in the footnotes to 23 Corpus Juris, page 1085.

(h) In line with the foregoing, the St. Louis Court of Appeals indicated in Bergman v. K.O.T.M., 203 Mo. App. 698,220 S.W. 1029, its view that letters of administration ought to be inadmissible even as prima-facie evidence of the fact of the intestate's death, in a collateral action in behalfLetters as of his widow against an insurance company — aEvidence. stranger to the original probate proceedings — and that such proof may properly be introduced only in actions to which the administrator is a party, for the purpose of establishing his status and right to participate in the litigation. But that court felt constrained to apply the contrary doctrine announced in Lancaster v. Washington Life Ins. Co.,62 Mo. 127, which is followed also in In re Buck, 204 Mo. App. 9, 220 S.W. 1033; Davis v. Gillilan, 71 Mo. App. 501; and Donaldson v. Lewis, 7 Mo. App. 408. Cases on the point are collected in Werner v. Fraternal Bankers' Reserve Society, 172 Iowa 504, 154 N.W. 773, Ann. Cas. 1918A, 1011.

(i) The Bergman case goes too far in saying evidence of the grant of letters should be received only in actions wherein the personal representative is a litigant. Such proof is not only admissible but collaterally conclusive when the issue is on the legal status of the administrator and his acts as such,Missouri whether he be a party or not, as in an ejectment suitCases. where the title to land is founded on an administrator's deed — with the exception that the other party may attack the letters collaterally by showing the probate court had no jurisdiction over the subject-matter, as that the letters were granted on the estate of a living person; but it is also going too far to say, as the Lancaster case appears to do, that the letters are competent at all in an action not attacking the status of the administrator. To that extent the decision, and those following it, should be overruled.

III. (a) If our conclusions in the preceding paragraphs are correct, the respondent's case is left hanging on the question as to the conclusive effect in this action of the finding and order made by the probate court on the administrator's application for authority to distribute $5,000 to the collateral heirs. The order was partly good, partly bad. The distribution wasPremature refused on the express ground that the deceased was aOrder. resident of Kansas; but the court went further and ordered the administrator to deliver the whole estate to the widow "after payment of the necessary costs of administration." This was five months before final settlement, with the record affirmatively showing administration costs, including attorney fees, undetermined by the court and unpaid. We think this latter part of the order was premature and void. [Brown v. Glover, 158 Mo. App. 399, 138 S.W. 105; Wadsworth v. Baldwin, 79 N.J. Eq. 274, 82 A. 326; In re Garrity, 108 Cal. 474, 38 P. 628, 41 P. 485; In re Schroeder, 99 N.Y.S. 183.] But we take the view that the order was responsive and valid insofar as it denied distribution to the heirs and assigned the residence of the intestate in Kansas as the ground for so doing. This far we hold it conclusive in this case.

(b) Proceedings for a probate distribution, like proceedings for the appointment of an administrator, are said to be in rem, the res being property involved (24 C.J. sec. 1355, p. 508); but there is this difference — in the former, our statute provides for personal service of notice on theProceeding resident distributees and publication service onin Rem: non-residents (except when the distribution is madeFinality. at a regular settlement). [Sec. 237, R.S. 1919; Sec. 241, Laws 1921, p. 115.] The right of appeal is allowed. [Sec. 282, R.S. 1919.] Questions concerning advancements may be litigated (In re Estate of Elliott, 98 Mo. 382, 11 S.W. 739), and the indebtedness of distributees to the estate offset against their distributive shares (Lietman's Exr. v. Lietman,149 Mo. 118, 50 S.W. 307). Conceding (but not deciding) the jurisdiction is limited to the property involved and that no personal judgment can be rendered even when the parties are in court, yet it is plain the proceeding is structurally such that distributees may legally appear, prosecute or defend, and appeal. They can, in other words, make themselves parties. [Womach v. St. Joseph, 201 Mo. 478, 100 S.W. 443, 10 L.R.A. (N.S.) 140; Gratiot County State Bank v. Johnson, 249 U.S. l.c. 249.] That is precisely what the appellant and respondent in this case did do, and there is no reason why they should not be bound by the result. It was not necessary that all the distributees personally intervene in the probate proceeding, nor is it necessary that all be parties to this. [State ex rel. v. Patton, 271 Mo. 560, 197 S.W. 353.]

(c) It does not follow that there can be no estoppel byverdict on the question of residence, because the probate proceeding was in rem. A proceeding in rem is the antithesis of a proceeding in personam, but not necessarily of a proceeding inter partes. The heart of the doctrine of res judicata is not the character of relief awarded inEstoppel the former action; it is the fact that the litigantsby Verdict. have had their day in court on the issue. [Womach v. St. Joseph, 201 Mo. l.c. 490.] The law applies it to those who have made themselves adversary parties to a judicial proceeding (the procedure permitting) though no personal judgment can follow. This has been expressly held of probate orders of distribution (Young v. Byrd, 124 Mo. 597, 28 S.W. 83; Bramell v. Cole, 136 Mo. 209, 37 S.W. 924), and generally (34 C.J. sec. 1663, pp. 1173-4; Sly v. Hunt, 159 Mass. 151, 34 N.E. 187, 38 Am. St. 403, 21 L.R.A. 680). In the case last cited the estoppel by verdict arose out of a will contest. There is authority on the point in this State (Benoist v. Murrin, 48 Mo. 48, 54; Hines v. Hines, 243 Mo. 495, 147 S.W. 774); and a dictum to the contrary in Byrne v. Byrne, 289 Mo. 122, 233 S.W. 461, which is followed in Canty v. Halpin, 294 Mo. 138, 242 S.W. 97. In both these cases it is said a will contest is not a proceeding inter partesbecause it is a proceeding in rem, and that, consequently, no estoppel by verdict results. On that point the two cases last mentioned should be no longer followed.

(d) The appellant would avoid the doctrine of res judicata, as applied to the order denying distribution, by attacking the order, itself, on two grounds. The first of these is the charge that the probate record fails to show the required notice of the application under Section 241, Laws 1921, page 115. ThisNotice. defense may be disposed of by saying that while the record does not show the notice was given, it does not show it was not given. It is silent on the point. In the absence of an affirmative showing therein to the contrary the law conclusively presumes in a collateral action every prerequisite jurisdictional step was taken. [Harter v. Petty, 266 Mo. 303, 181 S.W. 39; McIntyre v. St. L. S.F. Ry. Co., 286 Mo. 244-5,227 S.W. 1047.] The cases cited by appellants, Lilly v. Menke,126 Mo. 190, 28 S.W. 643; State ex rel. Brouse v. Burnes,129 Mo. App. 474, 107 S.W. 1094; and Baker v. Lumpee, 91 Mo. App. 560, deal with the law on the subject when the absence of notice is shown or admitted. The parol testimony of the administrator and his brother that they received no notice will not be permitted to impeach the record. [Oldaker v. Spiking, 210 S.W. 62.] Furthermore, the statute requires notice only to distributees "not applying therefor," and as the administrator filed the application through his brother, as attorney, we think neither of them was entitled to notice.

(e) The other assignment against the distribution order is that Judge ESTILL had no jurisdiction to make it. There are two points under this head, the first being that the record merely recites Judge ESTILL took the oath of office, when he qualified as judge pro tem., not that he took and subscribed the oath.Oath. There is nothing in this contention. The pertinent part of Section 2564, Revised Statutes 1919, is that the special judge "take and subscribe the same oath that the judge of probate is required to take." (Italics ours.) The regular probate judge is required by Section 2543, Revised Statutes 1919, to "take" the oath prescribed by the Constitution for all officers. Section 6 of Article XIV of the Missouri Constitution says "take and subscribe." The words are obviously used interchangeably by the statutes mentioned, with the same meaning, and the order should be similarly interpreted. At least it can be said, the use of the word "take" in the order does not amount to an affirmative showing that Judge ESTILL did not subscribe the oath, and with the record in this condition the law presumes he complied with the statute and Constitution. [State v. Allen, 267 Mo. 57-8, 183 S.W. 329.]

(f) The remaining point made is that when Judge ESTILL heard the evidence on the application for distribution and took the cause under advisement at the September term, 1921, of the probate court, he was sitting as special judge pro tem,Judge under Sections 2563-2565, Revised Statutes 1919; thatPro Tem. by force of these statutes his jurisdiction over the cause was not continuing, but limited to his tenure as such judge; and that, consequently, he had lost jurisdiction and had none when he called up the application and entered the order thereon, during the February term, 1922, while sitting again as judge pro tem. pursuant to another election. We agree to the premise, but not to the conclusion. His jurisdiction as judge under the election at the September term ended when he ceased longer to serve at that term. [Secs. 2563, 2565, R.S. 1919; Viertel v. Viertel, 212 Mo. 572, 111 S.W. 579.] But it by no means follows that the court lost jurisdiction of the cause. On the contrary the cause stood over from term to term until the April term, when Judge ESTILL, sitting as judge pro tem. during that term under another election, called it up and decided it, as the regular judge might have done, had he been presiding and advised of the issues. [Viertel v. Viertel, supra.] The parties had had their day in court. Both times Judge ESTILL was sitting as a court, not as an individual or as a special judge in that particular case only; and the order was in no way invalidated by his failure to communicate with the parties before he entered it. [State ex rel. v. Henderson, 164 Mo. 359, 64 S.W. 138.]

IV. Perhaps a word should be said about the effect of the estoppel on the defendant bonding company. If, as we have held, the administrator was bound by the finding of the probate court in passing on the application for an order of distribution, his bondsman is likewise bound, and bound conclusively. BySurety. entering into the engagement expressed in the bond (see Sec. 18, R.S. 1919) the defendant surety contractually obligated itself to answer for the conduct of the administrator in respect of all duties laid upon him by law and the decrees and orders of any court having jurisdiction. In so far as his duties in the matter here in issue are to be measured by the probate court's order, the order is binding on the other signers of the bond quite as much as it would be on the administrator if he were a party to the suit. [State to use v. Holt, 27 Mo. 340, 72 Am. Dec. 273; State ex rel. v. James, 82 Mo. 514; McPike v. McPike,111 Mo. 229, 20 S.W. 12; Calhoun v. Gray, 150 Mo. App. 591, 131 S. W. 478; 11 R.C.L. p. 303, sec. 351; Henry v. Heldmaier,226 Ill. 152, 80 N.E. 705, 9 Am. Eng. Ann. Cas. 155; Commonwealth v. Fid. Dep. Co., 224 Pa. 95, 73 A. 327; P. Ballantine Sons v. Fenn, 84 Vt. 117, 40 L.R.A. (N.S.) 708.]

V. Finally, on the appellant's complaint against the submission to the jury of the question of vexatious delay. The gist and meaning of the statute (Sec. 6337, R.S. 1919) is that when an insurance company has, without reasonable or probable cause or excuse, obstructed a beneficiary by refusing to payVexatious his loss under its policy, he may be allowed in hisDelay. suit thereon the penalties prescribed. [Block v. U.S. Fid. Guar. Co., 290 S.W. 441.] But the vexatious obstruction or delay ordinarily must occur, or being, before the filing of the suit. [Fay v. Aetna Life Ins. Co., 268 Mo. 389, 187 S.W. 861.] In this case the big disputed question of fact was concerning the domicile of the intestate. This suit was filed on October 3, 1922, twelve days after the final settlement was made. Even in the amended petition on which the respondent went to trial on January 30, 1924, an issue of fact was tendered on its merits on this question. At the trial the respondent abandoned that theory and relied exclusively on the doctrine of resjudicata. The appellant's evidence on what had theretofore been the controlling question of fact was excluded. It may have been weak or strong, frivolous or substantial; but it was not before the court and jury. The legal questions raised by the respondent's petition were such that lawyers well might differ, honestly and reasonably, thereon. In these circumstances it was error to submit the question of vexatious delay. [Dolph v. Maryland Casualty Co., 303 Mo. 551-2, 261 S.W. 330; Aufrichtig v. Columbia Nat Life Ins. Co., 298 Mo. 15-16, 249 S.W. 912; State ex rel. v. Allen, 295 Mo. 319, 243 S.W. 839.] Accordingly the items of $350 penalty and $1500 attorney fee, as returned in the verdict and carried into the judgment, should be stricken out of the latter, and the cause remanded with directions to enter judgment for plaintiff or relator, as of February 1, 1924, the date of the original judgment, for $8103.72 (this being the $7505.90 debt and $597.82 interest found by the jury), the same to bear interest from date until paid at six per cent per annum. [See Block v. U.S. Fid. Guar. Co., 290 S.W. l.c. 442.] Lindsay and Seddon, CC., concur.