The opinion
Henry, J.,
Dissenting!. — The plaintiff, a legatee and devisee under the last will and testament of Harriet Bailey, deceased, filed a petition in the circuit court of Greene *349 county against the other legatees, devisees and the heirs-at-law of the deceased, and the executor of her last will and testament, alleging that conflicting claims are made by different parties to the same property, and that plaintiff is in doubt as to the proper construction of the will, and as to the rights and interest of plaintiff in the property and estate devised and bequeathed to plaintiff, and concludes by asking the advice and direction of the court as to the proper construction and effect of the several clauses and items of the will under which said doubts arise. It also appears from the petition that thé administration of the estate is pending in the probate court of Greene county.
By section 7 of the act in relation to courts of record, (Wag. Stat. 440,) the several county courts, and the probate court of Greene county by the act establishing it, “shall, when not otherwise provided by law, have exclusive original j mis diction * * to hear and determine all disputes and controversies whatsoever respecting wills, the right of executorship, administration and guardianship, and respecting the duties and accounts of executors, administrators and guardians,” &c. By the same section, in the same language, exclusive original jurisdiction is conferred upon those courts, in all cases relating to the probate of wills, the granting letters testamentary and of administration, and repealing the same; appointing and displacing the guardians of orphans, minors and persons of unsound mind; in binding out apprentices; to hear and determine all suits and other proceedings instituted against executors or administrators upon any demand against the estate, when such demand shall not exceed $100. The jurisdiction to hear and determine all controversies whatsoever respecting wills and the duties of executors and administrators is as exclusive as the jurisdiction on any other subject mentioned in the section. The petition states a case expressly within the exclusive jurisdiction conferred upon county courts by the 7th section.
The exclusive jurisdiction of the probate courts and *350 county courts with probate jurisdiction is recognized in the following cases: Graham v. O’Fallon, 3 Mo. 507 ; Jackson v. Jackson, 4 Mo. 210 ; Miller v. Woodward, 8 Mo. 174 ; Overton v. McFarland, 15 Mo. 312 . But, aside from all authority on the subject, the statute, plainly enough, not only confers authority on the probate court to construe wills, but gives it exclusive jurisdiction over all disputes and controversies respecting them and respecting the duties of executors and administrators pending the administration of the estate in that court. Here the circuit court was only asked to construe’the will for plaintiff' and direct the executor as to his duty under the will. Suppose the probate court should entertain a different view as to the construction of the will and the duty of the executor? It has the control of the estate, and is bound to make all necessary orders for its administration. Where does the circuit court get its authority to control or instruct the probate court in such matters ? By the express, unequivocal terms of the statute, the probate court has original, exclusive jurisdiction to hear and determine all disputes and controversies whatsoever respecting wills and the duties of executors, but it is contended another court has authority to tell that court how to hear .and determine those controversies and disputes. The probate court has original exclusive jurisdiction, but the circuit court has the learning, and therefore the authority, to instruct the other how to exercise that jurisdiction.
Does the petition state facts which show that a controversy has arisen with respect to the will ? If so, it must be settled in the first place in the probate court. The authority claimed for the circuit court is not conferred by section 2,Wagner’s Statutes, 430, giving it a superintending control over county courts and justices of the peace. Appeals lie to the circuit court for the correction of any errors which may be committed by the probate court in the exercise of the jurisdiction conferred upon it by section 7, and in this, and in no other manner, can the circuit court exer *351 cise a superintending control ovér that court as to-its judgments, orders and proceedings under that section, and the exercise of a superintending control over that court in any other manner must relate to matters not embraced in that section. If the authority claimed for the circuit court in this case exists under section 2, then it may interfere and direct justices of the peace and probate courts how to proceed in any case pending in those courts; how to construe written instruments offered in evidence; how to decide questions as to the admissibility of evidence or the competency of witnesses. Courts of law are as competent as courts of equity to construe wills. The mere construction of wills is not a ground of equity jurisdiction. In a suit in equity, that court construes a will when it becomes necessary in the progress of the trial. So does a court of law, but where or when was it ever held that, in a cause pending in a court of law, a court of equity could determine for it how a will should be construed ? The supreme court, by the constitution, section 3, article 6, has “ a general superintending control over all inferior courts,” but an application to this court to construe a will for a circuit court, in which a cause ■ originating under the will was pending, would certainly not be listened to with much favor.
But it is said that this is not a controversy respecting a will; that a controversy respecting a will is one in which its execution is questioned, or the competency of the testator to make it is denied, or undue influence in procuring its execution is alleged. This argument overlooks the first clause of the section (7), by which original exclusive jurisdiction is given to the county courts, in all eases relative to the probate of last wills and testaments. The other clause of the section, giving it jurisdiction to hear and determine all controversies whatsoever respecting wills, has a wider scope and embraces all disputes respecting the construction of wills.
It is further' contended that the statute has made no provision for bringing into the county court the parties in *352 terested,.and, therefore, the circuit court must necessarily exercise the jurisdiction herein claimed. By section 17, Wagner’s Statutes, 420, all courts have power to issue all writs which may be necessary in the exei’cise of their respective jurisdictions, according to the principles and usages of law, and by section 8, page 440, “ The said (county) court shall, when not otherwise provided by law, have power to award process, and to cause to come before them all and every person * * who, as executors, administrators, guardians, or otherwise, shall be interested or in any way accountable for any lands, tenements, goods or chattels belonging to * * the estate of any deceased person.” These sections are a complete answer to the suggestion last noticed.
Nor has the circuit court the jurisdiction asserted under that clause of section 2, Wagner’s Statutes, 430, giving it a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind. This was distinctly decided in the case of Miller v. Woodward, and Thornton’s Admrs., 8 Mo. 175 . “It is apparent then, from an examination of the different provisions of our acts, that the general control, over executors and administrators given by the 6th clause of the 8th section of the act concerning courts, must be limited in its application to such cases as are not provided for in the more specific distribution of equity jurisdiction, to be found both in our act concerning administration, and in the act defining the jurisdiction and the powers of the county and circuit court. The clause appears to have been inserted through abundant caution. The legislature, notwithstanding the care with which they had devised, in the law of administration, suitable modes by which estates could be settled without the aid of courts of equity, except where the intervention of such courts was expressly authorized, thought proper to invest the courts of equity with this general control over executors and administrators to be exercised where the remedy at law was still inadequate.” *353 The same was equally as clearly held in Overton v. McFarland, 15 Mo. 313 .
That county court justices are not required to be learned in the law, and are not supposed to be competent to construe wills, are considerations that might be urged upon the legislature against conferring upon those courts the jurisdiction given them by the 7th section ; but when the general assembly has seen proper to confer an exclusive jurisdiction upon a judicial tribunal, it is not for this court to say that the judicial officer whom the people may elect to preside there may be incompetent to discharge the duties imposed on him by the law, and, therefore, the law is to be held for naught. If the legislature should see proper to confer exclusive jurisdiction upon justices of the peace, throughout the state, to hear and determine causes involving titles to real estate, the courts might think it unwise legislation, but could not hold the act, therefore, invalid. It is not unconstitutional to assume, in a legislative act, that justices of the peace or other judicial officers, are •capable of discharging any judicial function which they may be required by the act to discharge. The probate •court can scarcely make an order with respect to the estate of a testator without first construing his will. In every order of distribution it necessarily construes the will.
I think that the circuit court committed no error in sustaining the demurrer to the petition, and that its judgment should be affirmed.