St. Louis v. Wallrath. to the petition. A motion to strike out this special plea in the answer being overruled and plaintiff failing to file a reply to the answer, the court dismissed the petition as against all of the defendants. From this order plaintiff appealed. The respondents contend that under our Constitution, statutes and the charter of the city, plaintiff was required to pay to the owners of abutting property, or into court for their benefit, consequential damages arising from a change in the grade of the street, before beginning the work, and that where the city proceeds with the work pending an action. to assess the benefits and damages, the plaintiff is estopped from proceeding with the suit and the court loses jurisdiction of the action as an entirety, and it abates, not only as to the defendants pleading, but to the others as well who do not plead. I. This was not an action to condemn private property for a street. It was admitted that the street had long been in existence and that ordinances had been enacted and appropriate proceedings taken to change the grade of the street and that the owners of abutting lots would or might sustain consequential damages as a result of such change of grade. Hence the right of the city to change the grade is not in question. Grading Street: Article XXI of the Charter of the City of St. Louis relates to the condemnation of or damages to private property, real or personal, or any easement therein for public use. It provides for the appointment of commissioners to assess damages in the condemnation or the damaging of property for highways or in the change of the grade of streets; that the damages and benefits shall be assessed as of the date the ordinance became effective. Section 6 provides: "At any time after the Commissioners file their report, the city may pay into court the amount of damages assessed, less benefits, if any, and thereupon it shall be entitled to take possession of or damage the property." St. Louis v. Wallrath. Section 7778, Revised Statutes 1919, reads: "No street, avenue, sidewalk, alley or other public place in any city of the first class, excepting parks, parkways and boulevards, shall be graded so as to change the existing grade thereof, unless the property owners to be affected thereby petition therefor and waive all claim to damages on account thereof, or unless such damages shall be first ascertained and paid as hereinafter provided; and any special tax bills issued, for grading in violation of this law shall be void." [R. S. 1909, sec. 8692.] There can be no doubt that this section requires damages for taking, as well as consequential damages, to be ascertained and paid before a street in a city of the first class can be graded so as to change the existing grade. [McGraw v. Paving Co., 247 Mo. 549, 570.] Notwithstanding the provisions of this section, pending the action for the ascertainment of the resulting damages, the city made the improvements pursuant to ordinances regularly enacted, which changed the existing grade. So far as this record discloses, this was done without protest on the part of the owners of abutting property. In this case there is no taking of private property. The abutting lots were not invaded or even touched. It is admitted that the damages claimed are purely consequential. Section 8980, Revised Statutes 1919, which is applicable to the city of St. Louis, provides a procedure for the assessment of damages and benefits derived from the proposed grading or re-grading. Section 8981 provides that in case a claim or claims for damages be filed, the court shall retain jurisdiction and proceed to cause the damages or compensation to be ascertained in the manner provided by the charters of such cities or any law affecting the same. Section 8676, Revised Statutes 1919, provides, in substance, that in all cases where the proper authorities in any city in this State have graded or re-graded or may hereafter grade or change the grade of any street or alley, causing damage to private property for public use, within the meaning of Section 21 of Article 2 of St. Louis v. Wallrath. the State Constitution, without the consent of the owner of such property, or, in case they fail to agree with the owner thereof for the proper compensation for the damages done or likely to be done or sustained by reason therof, commissioners may be appointed to estimate and determine the damages, if any, the property has sustained, and providing the procedure. "It [the action] may be instituted by the city authorities, or by any property owner whose property has been or is likely to be damaged by the public improvement, entirely regardless of the fact whose property has been or is to be taken for the public use, whether his own or that of someone else. The whole scope and purpose of this proceeding is to determine the amount of damages which the owner of private property has suffered or will suffer by reason of a public improvement affecting his property and providing the means of compensating him for such damage." [Albany v. Gilbert, 144 Mo. 224, 1. c. 232.] This section is remedial and is intended to meet the conditions presented by this case. It should be liberally construed. We cannot agree with respondents that the making of the improvements pursuant to the ordinances worked an abandonment of the action for the assessment of the damages or estopped plaintiff from the further prosecution thereof. Independent of the sections cited, supra, it has been held that proceedings to condemn may be instituted after the appropriation of the land, either under a special charter or the general law. [Cory v. Railroad, 100 Mo. 282, 292.] In view of the facts that this proceeding is authorized by our statutes, either before or after the completion of the work; that no one was injured by it; that it might have been commenced by the city or by the owners of the abutting property, there can be no merit in the claim that the doing of the work before the assessment and payment of the damages was an abandonment of the action, or that it estopped further prosecution thereof. The judgment is reversed and the cause remanded for further proceedings. All concur. Dildine v. DeHart. IN THE MATTER OF ESTATE OF JOHN DILDINE; JAMES C. DILDINE et al., Executors, Appellants, v. BERTHA M. DeHART. Division Two, April 7, 1922. 1. ADMINISTRATION SALE TO PAY DEBTS: Appellate Jurisdiction. The Supreme Court has jurisdiction of an appeal from the judgment of the circuit court, rendered on appeal from the probate court, holding void an order of the probate court for the sale of decedent's real estate to pay debts and legacies, inasmuch as such proceeding involves the title to real estate, which is directly affected by the judgment. 2. 3. 4. -: Jurisdiction of Probate Courts. Probate courts have juris diction to order the sale or leasing of the real estate of a decedent for the payment of debts, upon being satisfied of the necessity therefor. And until the order of the court, either to sell or lease such real estate, the administrator or executor has no rights over it, as the title to it, upon the death of the owner, passes to and vests directly in his heirs or devisees. -: Circuit Courts: Partition. Circuit courts have jurisdiction to order the partition, or sale for purposes of partition, of real estate of a decedent, among his heirs or devisees, before the final settlement of his estate in the probate court, subject to the final settlement of such estate and the full discharge of all claims against the same as provided in Section 2006, Revised Statutes 1919. : : : Exclusive. After the filing in the circuit court of a suit for the partition of the real estate of a decedent among his heirs and devisees, pending the administration of his estate in the probate court, the circuit court has exclusive jurisdiction over said real estate and can order a sale thereof and distribution of the proceeds, subject to the provisions of Section 2006, Revised Statutes 1919, and the probate court, after the filing of such partition suit, has no jurisdiction to entertain a petition for sale of such real estate to pay debts or legacies. Appeal from Clinton Circuit Court. Hon. Alonzo D. Burnes, Judge. AFFIRMED. Dildine v. DeHart. Daniel H. Frost for appellant. (1) Letters of administration were taken out on October 31, 1918. The record shows that the personal estate, which consisted of household furniture valued at $25, was willed by specific legacy. The will left a legacy also of $1,200. At that date, without regard to the allowance of any debts whatever, the probate court had jurisdiction not only to administer the estate, but to order the sale of the real estate for the payment of said legacy. Thereafter bills were presented to the administrators; these were not allowed until May 16, 1919, which was only six and a half months after letters were taken out. (2) The tendency is to vest exclusive jurisdiction in probate court in administration of estates and arm them with ample powers, and they should not be interfered with. 1 Woerner on Adm., sec. 156. (3) Respondent insists that they filed their suit in the circuit court for partition of this land before the administrators filed their petition for sale for payments of debts, thereby falling into the peculiar error of supposing that the probate court's jurisdiction was a matter of a foot race; that it could be deprived of jurisdiction of a matter of which it already had jurisdiction by a delay of a few days in taking certain necessary steps for the sale of this land. They forget that the authority of the administrator to sell land relates back to date of death of deceased, and that creditors and legatees take precedence over heirs, and that a sale by the administrators possesses a superior title to that held by heirs. Grant v. Hathaway, 215 Mo. 141. (a) Even after sale by heir, the probate court may still order a sale of interest of heirs to pay debts. Wright v. Green, 239 Mo. 449; Metcalf v. Smith Heirs, 40 Mo. 576. (4) It is the jurisdiction of the circuit court which should be suspended until the estate has been fully administered in the probate court. King v. Ayers, 168 Mo. 250; Mills v. Mills, 141 Mo. 199. (5) Real estate descends cum onere-immediately comes into custody of the law to be adminis |