tiff's cross-appeal, and on defendants' cross-, two, contested the validity of same, and appeal reversed and remanded, with direc- some of the cases were in the federal Distions. This case came to the Kansas City Court of Appeals by cross-appeals, from the judgment of the Daviess county circuit court, in passing upon plaintiff's amended exceptions to the fourth and alleged final settlement of defendants herein, as executors of the estate of Eber B. Roloson, deceased, filed in the probate court of De Kalb county, Mo. The case was appealed to the circuit court of said last-named county, and on change of venue was transferred to the Daviess county circuit court. When reached for trial there, the court appointed Hon. A. D. Hewett as referee. He duly qualified as such referee, heard the testimony of both plaintiff and defendants, made a written report as to his findings upon the law and facts, accompanied by the testimony taken before him, found certain issues in favor of this plaintiff, and others in favor of defendants. Both plaintiff and defendants filed exceptions to the report of the referee, which will be considered hereafter. The exceptions of both parties to the report of the referee were overruled, and judgment was entered confirming said report. Both parties appealed to the Kansas City Court of Appeals, and the latter certified the case to this court, on the ground that the amount in controversy made the appeal returnable here. It appears from the testimony that Eber B. Roloson died while a resident of De Kalb county aforesaid on or about the 28th day of February, 1903, testate. He appointed in his will Paul Riggs, Eugene De Hart, and Howard J. Roloson as executors therein. Howard J. Roloson (brother of deceased) declined to act, but the other parties mentioned duly qualified as such executors, and took charge of said estate. The only clause of the will necessary to mention here is the following: "I want all of my debts paid without probating, a list which I will leave with my brother, Howard J. Roloson." About the year 1899, or 1900, the wife of said Eber B. Roloson died. This plaintiff, then a minor, was the only child and heir at law of said Eber B. Roloson and wife. It appears from the evidence that decedent, at the time of his death, was the owner of about 200 acres of valuable land in De Kalb county aforesaid, and also about two acres of real estate in the town of Weatherby, in said county. He owned about one dozen policies of insurance in different companies aggregating over $42,000. He likewise owned some personal property appraised at about $5,100. The 200 acres of land was incumbered by a deed of trust for $4,000, and the Weatherby town property was also incumbered for about $1,000. He owed various other debts not necessary to mention. The policies of insurance were taken out shortly before his trict Court, the United States Court of Appeals, and in the Supreme Court of the United States. After years of litigation and great expense the defendants finally collected about $45,206.66 on said insurance policies. The total claims allowed by the probate court, including the mortgages, amounted The 200 acres approximately to $35,000. was appraised at $9,000, and the town property at $1,200. Without the insurance, the estate of decedent was hopelessly insolvent. Such other matters as may be necessary will be considered hereafter. Both plaintiff and defendants filed their respective motions for new trial, which were overruled. The defendants also filed their motion in arrest of judgment. This motion was likewise overruled, the case appealed by both parties to the Kansas City Court of Appeals, and certified here, as above mentioned. Broaddus & Crow, and Ernest D. Martin, all of Kansas City, for Lucy M. Roloson. William M. Fitch, of St. Louis, for Paul Riggs and Eugene De Hart. RAILEY, C. (after stating the facts as above). This is an action at law, and the trial court properly appointed a referee to take the testimony and report to the court his findings of law and fact. Counsel for plaintiff filed in the probate court of De Kalb county, Mo., 21 exceptions to the fourth annual settlement filed in said court on August, 22, 1912, by defendants as the executors of the estate of Eber B. Roloson, deceased. The referee heard the testimony of both plaintiff and defendants, and at the October term, 1914, of the Daviess circuit court filed therein his findings of law and fact, with a transcript of the testimony taken before him. All of the 21 exceptions filed by plaintiff to the settlement aforesaid were overruled and denied by the referee, except those numbered 3, 13, and 19, and to the allowence of these three the defendants excepted. [1] Plaintiff filed in the circuit court aforesaid 7 exceptions to the report and findings of the referee, which will be considered hereafter. The defendants likewise filed 7 exceptions to the report and findings of said referee, which will also be considered later. The Daviess circuit court overruled all the exceptions filed by both plaintiff and defendants, and entered a decree confirming said report and findings of both law and fact. In view of the foregoing, the case stands before vs as if the findings of fact and conclusions of law had been made by the trial court. The motions of both plaintiff and defendants for new trial were overruled, and defendants' motion in arrest of judgment was also overruled. The case was tried by the court without instructions. acted upon said application and authorized the payment of said sum. The Ewart note was presented to the probate court for allowance and classification, and the following judgment was rendered in respect to same: trial court will only be reviewed by us to, est above mentioned. The The probate court the extent of determining whether or not they are supported by substantial evidence. City of St. Louis v. Parker-Washington Co., 271 Mo. 229, 196 S. W. loc. cit. 769; Coulson v. La Plant (Mo.) 196 S. W. loc. cit. 1146; Truitt v. Bender (Mo.) 193 S. W. 839; Buford v. Moore (Mo.) 177 S. W. loc. cit. 872; Abeles v. Pillman, 261 Mo. loc. cit. 376, 168 S. W. 1180; Slicer v. Owens, 241 Mo. 319, 145 S. W. 428; Minor v. Burton, 228 Mo. 558, 128 S. W. 964. [3] I. Plaintiff's Assignment of Errors.The first error assigned by plaintiff reads as follows: "The trial court erred in refusing to charge the executors with the store account of $56.40 allowed in their favor long after the account had been barred by limitation." 1905. "February Term, 1905. Monday, March 6, "James Ewart, Plaintiff, against Paul Riggs Ewart,_Plaintiff, and Eugene De Hart, Executors of the Estate of Eber B. Roloson, Deceased, Defendants. "Come now the parties hereto and this cause being at issue, and founded on a promissory note secured by a deed of trust to real estate, is by agreement submitted to the court for trial, and the court having heard the evidence doth find for the plaintiff in the sum of $4,195.30. It is therefore adjudged by the court that the plaintiff recover of and from the deNo exception was filed to the action of fendants the said sum of $4,195.30 so found as aforesaid with his costs taxed at $1.80, assignthe referee in overruling the above assigned to the sixth class of demands at 6 per cent. ment. Nor is there anything in plaintiff's motion for a new trial relating to this subject. No appeal was ever taken from this alIn view of the foregoing, said assignment lowance by the plaintiff or any creditor of is overruled. said estate. [4] II. Plaintiff's second assignment of error is as follows: "The court erred in refusing to charge the executors with the $4,000 paid by the executors to James Ewart and the interest thereon paid as shown by the statement." In order to properly understand and dispose of this assignment of error, it will be necessary to state the facts relating to said demand. interest. "Record 9, at p. 230." On June 3, 1907, these defendants, as executors, filed in the probate court aforesaid their third annual settlement, in which they received credit for $4,728.39, on account of the payment of the Ewart note aforesaid. This settlement was approved, and no appeal was ever taken therefrom. The judgment of the probate court aforesaid, in respect to the Ewart demand, stood unchallenged from March 6, 1905, until the filing On April 17, 1899, while testator was the of the exceptions to the fourth annual setowner of the 200 acres of land heretofore tlement of said executors in August, 1912. mentioned, and appraised at $9,000, he and This court, in the case of A. W. Thompson his wife gave a deed of trust thereon to et al. v. Augusta Pinnell et al., 199 S. W. secure a note of $4,000 in favor of James 1011, decided December 22, 1917, in discussEwart. Said note bore 6 per cent. interesting the law of this state, in respect to profrom date, compounding annually. It was due five years after the date aforesaid, and contained the following provision: Testator died on February 28, 1903, without having paid any part of the principal of said note. Letters of administration, with the will annexed, were granted to defendants on March 4, 1903. The note aforesaid became due on April 17, 1904. It is evident from the record before us that said note from the record before us that said note was presented to the defendants as executors of said estate after its maturity and before its allowance and classification in the probate court, as there was indorsed on the back of same the following: bate courts, said: "It is now well-established law in this jurisdiction that the orders and judgments of our probate courts made in the exercise of their statutory powers over subjects conferred upon them by law, are entitled to the same favorable presumptions arising from either the affirmative statements, or the silence of their records, as are accorded in similar cases to the circuit courts. Johnson v. Beazley, 65 Mo. 250, 27 Smelting Co., 68 Mo. 433; Henry v. McKerlie, Am. Rep. 276; Long v. Joplin Mining & 78 Mo. 429; Camden v. Plain, 91 Mo. 128, 4 S. W. 86; Rowden v. Brown, 91 Mo. 432, 4 S. W. 129; Rottman v. Schmucker, 94 Mo. Estate Ass'n, 101' Mo. 116, 14 S. W. 57, 20 144, 7 S. W. 117; Price v. Springfield RealAm. St. Rep. 595; Williams v. Mitchell, 112 Mo. 308, 309, 20 S. W. 647; Macey v. Stark, 116 Mo. 494, 21 S. W. 1088; McKenzie v. Donnell, 151 Mo. 450, 52 S. W. 214; Cox v. Boyce, 152' Mo. 582, 54 S. W. 467, 75 Am. St. Rep. 483; Covington v. Chamblin, 156 Mo. 587, 57 S. W. 728; Stark v. Kirchgraber, 186 Mo. 646, "Recd. 275.00 as interest 5/11/1904." "Recd. dft. 303.06 to pay int. on note to 647, 85 S. W. 868, 105 Am. St. Rep. 629; RobMay 11, 1904, on 7/7/1904." Turning to the record of the probate court of De Kalb county, read in evidence by plaintiff we find that the defendants herein, as executors, on May 10, 1904, applied to said court for an order to pay the $275 of inter bins v. Boulware, 190 Mo. 51, 52, 88 S. W. 674, 109 Am. St. Rep. 746; Desloge v. Tucker, 196 Mo. 601, 94 S. W. 283; Ancell v. Bridge Co., 223 Mo. 227, 122 S. W. 709; Spicer v. Spicer, 249 Mo. 598, 599, 155 S. W. 832, Ann. Cas. 1914D, 238; Norton v. Reed, 253 Mo. 251, 161 S. W. 842; Wilson v. Wilson, 255 Mo. 536, 537, 164 S. W. 561; Bingham v. Köll man, 256 Mo. 589, 165 S. W. 1097, and cases | spect to the action of the probate court and cited; Einstein v. Strother, 182 S. W. 123; these defendants in regard to the Ewart Crump et al. v. Hart et al., 189 Mo. App. 575, 176 S. W. 1089; Deweese v. Yost, 161 Mo. App. 12, 143 S. W. 72." Section 278, R. S. 1899, reads as follows: "Appeals shall be allowed from the decision of the probate court to the circuit court in the following cases: First, on all demands against an estate exceeding ten dollars; second, on all settlements of executors and administrators; * ** fiftenth, and in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter. And the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration." Section 279 provides that appeals should be taken during the term at which the decision complained of was rendered, or within ten days thereafter. Section 143, R. S. 1899, is in the following language: claim. The above assignment of error is accordingly overruled. III. The third assignment of error made by plaintiff is as follows: "The court erred in refusing to charge the executors with the $1,000 paid by the executors to Brill in satisfaction of a note, together with interest paid thereon as detailed in the statement." It appears from the record that deceased bought about two acres of real estate in the town of Weatherby in De Kalb county, Mo., and was living upon the same as his homestead at the time of his death. He executed a mortgage on said town property to Nelson L. Brill to secure said indebtness. On June 3, 1907, the defendants made application to the probate court aforesaid for an order to pay off and discharge the Brill demand supra. The executors paid off said note in full on April 27, 1907, amounting to $1,070, and received credit in the third annual settlement aforesaid for the above sum. The same observations made in respect to the Ewart note are applicable to this transaction. In addition, however, to the foregoing, we find, upon turning to the record, that no exception was filed by plaintiff to the findings of fact and law by the referee in respect to this matter. "If any person die leaving land incumbered by mortgage or deed of trust, or any lien whatever, or owning any equity of redemption, or leaving mortgaged or pledged any personal property, and shall not have devised the same or provided for the redemption thereof by will, the court shall have power, if in its judgment it will promote the interest of the estate, and not be prejudicial to creditors, to order the executor or administrator to redeem the same out of the personal assets of the estate, or to order the sale of other real estate to redeem such land or personal property so incumbered." Under the broad powers conferred upon the probate court under the section just quoted, it had the right to have defendants redeem the 200 acres above mentioned from the lien of the Ewart mortgage, especially so as said real estate was reasonably worth more than double said debt. Plaintiff in this ac-executors with the amount claimed by them, "The court erred in refusing to charge the tion is the residuary legatee in the will, and namely, 5 per cent. of the amount of money it is perfectly manifest that the judge of the claimed by them as executors on account of probate court, in allowing said claim to be the gross violation of their duties as execureduced to judgment, and in approving the settlement of defendants in which said demand was paid, became satisfied that it was to the interest of both plaintiff and those interested in said estate to have said demand paid off and discharged. The plaintiff is now asking this court to disallow the amount paid by these defendants in extinguishing the Ewart lien on the real estate aforesaid, although said deed of trust was satisfied of record on April 23, 1907, under the circumstances aforesaid. We are of the opinion that on the evidence before us, the probate court of De Kalb county, Mo., was fully justified in authorizing the defendants to pay off the Ewart judgment and note above mentioned. It is manifest that if Ewart had not presented his note for allowance and classification, he could have foreclosed said deed of trust after the expiration of the nine months mentioned in section 145, R. S. 1899, and have realized from said sale not only the full amount of his debt and interest, but could likewise have recovered 10 per cent. as attorneys' fees for foreclosing same. Considering this whole question, we are at a loss The above assignment of error is accordingly overruled. IV. The fourth assignment of error reads as follows: tors." This assignment is without merit, and no exception was filed to the report of the referee in respect to same. V. It is assigned as error by plaintiff that: "The court erred in not sustaining all the exceptions to the alleged final settlement." No exception of this kind was filed to the findings of the referee, and the same is hereby overruled. VI. This assignment, and the one numbered 9, are practically the same, and relate to the question as to whether this is a final settlement or otherwise. No issue of this kind was presented by way of exception to the report of the referee, nor in the motion for a new trial. We have proceeded in the case as though it were the fourth annual settlement. Said assignments 6 and 9 are therefore without merit, and are overruled. VII. The seventh assignment of error is practically the same as No. 4 supra, and is disallowed for the same reason. [5] VIII. It is claimed that the trial court erred in assessing one-half the costs of this proceeding against the plaintiff up to the to the record, that plaintiff filed 21 exceptions to the fourth annual settlement, and was sustained in respect to 3 of same. The main part of the record before us relates to those matters upon which plaintiff was defeated in the court below, and, having forced the defendants to meet these objections, we are of the opinion that the trial court did not abuse its judicial discretion in taxing respondent with one-half of the costs. [6] IX. Defendants' Assignment of Errors, on Cross-Appeal. It is insisted by appellants that the referee and trial court committed error in sustaining plaintiff's exception 19 to the fourth annual settlement as follows: "This exception is sustained in favor of plaintiff in the sum of $59.02, and executors are surcharged or debited with sum of $59.02." We think the above assignment of error is well taken. The referee, in plaintiff's exception 8 to the above settlement, correctly found that a certain lot of corn appraised and charged to appellants was sold for $1,180.50, and said sum paid to the mortgagee on his debt. Under section 223, R. S. 1899 (now section 229, R. S. 1909), the defendants were entitled to a commission of 5 per cent. on the above sum of $1,180.50. The ruling of the referee and trial court was erroneous in holding that defendants were not entitled to said credit of $59.02. X. Defendants assign as error the action of the referee and trial court in sustaining plaintiff's exception numbered 3 to the fourth annual settlement, and in refusing to allow them the commission of $200 approved by the probate court, as shown by voucher 36, in the second annual settlement, under date of June 1, 1905. This $200 is also carried forward into into the fourth annual annual settlement as commissions paid executors. It appears from the petition of appellants to the probate court, under date of June 3, 1907, that they only claimed $1,000 for services outside of the 5 per cent. commission allowed by statute. The referee and trial court, in surcharging defendants' settlement with $1,200, proceeded upon the theory that all of it was for special services, whereas we are of the opinion that the probate court was right in treating the $200 as a part of the 5 per cent. commission allowed by law. The referee and trial court therefore erred in sustaining plaintiff's exception numbered 3 to the fourth annual settlement as to the $200 mentioned therein. [7] XI. Appellants assign as error the action of the referee and trial court in sustaining plaintiff's exception numbered 3 to the fourth annual settlement supra, wherein de 203 S.W.-62 fendants were allowed $1,000 as extra compensation for services in looking after and collecting the insurance due the estate of which they were executors. We are satisfied from the record before us that appellants throughout their administration have acted honestly and in the utmost good faith in all they did relating to said estate. They were required to be vigilant and to perform a great deal of work in the prosecution of the suits to collect the insurance due said estate, and deserve credit for having collected over $45,000 after years of litigation. They were not only interested in collecting this insurance, because it was their duty to do so by virtue of their office, but if they had been defeated in the collection of same, it would have entailed a loss to them of 5 per cent. commission on the above sum. They received credit for certain expenses paid out by them, and also credit for the amounts paid to attorneys representing them. Section 229, R. S. 1909, which is the same as section 223, R. S. 1899, provides that they should receive, as full compensation for their services and trouble, a commission of 5 per cent. on personal property and on money arising from the sale of real estate. Upon a full consideration of this question, we are of the opinion that the 5 per cent. commission allowed by the above section, in addition to the expenses allowed defendants by the probate court, was intended by the General Assembly to be full compensation for the services rendered by appellants under the circumstances disclosed by the record herein. The referee and trial court cannot be convicted of error in aisallowing the item of $1,000 mentioned in the above assignment. XII. Upon a careful consideration of all the questions before us, we affirm the judgment of the trial court as to the issues presented in plaintiff's cross-appeal, and reverse and remand the cause on the issues presented in defendants' cross-appeal, with directions to the lower court to correct its judg ment so as to allow defendants the above credits of $59.02 and $200, respectively. BROWN, C., not sitting. PER CURIAM. The foregoing opinion of RAILEY, C., is adopted as the opinion of the court in banc. GRAVES, C. J., and FARIS, BLAIR, and WILLIAMS, JJ., concur. WALKER, J., concurs in result. WOODSON, J., concurs in all except what is said of the Parker-Washington Co. Case. BOND, J., dissents because the opinion does not state correct rule of review in compulsory reference cases. tion given, it simply gave the jury its choice as 7. TRIAL 296(1)-INSTRUCTIONS-CURE BY OTHER INSTRUCTIONS. BELLOWS v. TRAVELERS' INS. CO. OF to which it would obey. 1. INSURANCE 466-ACCIDENT POLICY Where insured, in perfect health, was severely beaten by footpads in September, 1912, and there was evidence that the internal effects of the beating caused kidney trouble, which progressed from stage to stage until he died in June, 1913, the jury were justified in finding that 'death 'resulted, directly and independently of all other causes, through the injury; the thread of causation not being broken, as a matter of law, by intermediate infection or disease. 2. INSURANCE 529- TOTAL DISABILITY"WHOLLY DISABLED." Under an accident policy undertaking to pay the indemnity named in case of death from injuries within 90 days from the accident, and in cases when the injuries received shall wholly and continuously disable and prevent insured from performing "any and every kind of duty pertaining to his occupation," and death shall result from the injuries during such disability and within 200 weeks from the accident, the disability within the period of which the indemnity is payable in case of death is disability to perform any substantial part of insured's business; for when one is disabled from performing those substantial acts which characterize his occupation, common and subsidiary acts, such as opening letters, and nominal and clerical duties, cease to pertain to it. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Wholly Disabled.] 3. INSURANCE 668(11)-QUESTION FOR JURY -DISABILITY. In action on accident insurance policy containing such a provision, evidence held to make it a question for the jury whether deceased was continuously disabled by injuries from the date of accident until his death. 4. INSURANCE 669(11)-ACTION-INSTRUCTION "SUBSTANCE"-"SUBSTANTIAL." In such action, an instruction, allowing recovery if death resulted from the accident within a period when insured "was substantially disabled from attending to the duties of his occupation," was proper in its use of the word "substantial," for "substance," as its etymology indicates, is that which stands under and supports all phenomena, whether material or mental, the essence of the thing itself, and that element of which the law takes notice in administering concrete justice. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Substance; Substantial.] 5. INSURANCE 669(11)-ACTION-INSTRUC TION. In such action, an instruction allowing recovery if insured's death was caused by bodily infirmity or disease directly resulting from his accidental injuries was erroneous in not requiring proof of continuous disability from the accident until death, although defendant pleaded the continuous disability policy provision in its answer, for thereby defendant went no further than to waive the statement of such provision in the petition by making it for itself. 6. TRIAL 296(2)-INSTRUCTIONS-CURE BY OTHER INSTRUCTIONS. Nor was such error cured by an instruction given for defendant that continuous disability was a necessary element to authorize a recovery in case of death from sickness induced by the injury, since, being inconsistent with the instruc An instruction, which expressly directs the jury to return a particular verdict upon finding a particular fact, is not rendered harmless by one which tells them not to return such a verdict without proof of another fact, because it is impossible to obey both unless that other fact be found. Woodson and Bond, JJ., dissenting. Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge. Action by Hattie Mae Bellows against the Travelers' Insurance Company of Hartford, Conn. From a judgment for plaintiff, defendant appeals. Reversed and remanded. This is an action to recover $15,000, includ ing accumulations, on an accident insurance policy issued by the defendant company to Frank L. Bellows, the husband of plaintiff, who is named in the policy as the beneficiary to whom payment should be made in the event of death. The provisions of the policy which are pertinent to the issues made in this appeal are as follows: "The Travelers' Insurance Company of Hartford Connecticut, does hereby insure Frank L. Bellows against bodily injuries, inflicted directly and independently of all other causes, through external, violent and accidental means ered) as specified in the following schedule. (suicide whether sane or insane is not cov "Schedule of Indemnities. "The principal sum of this policy in the first year is $10,000.00. Increases annually until maximum is $15,000.00. berment and Loss of Sight. If any one of the "Part A. Single Indemnity. Death, Dismemdisabilities enumerated below shall result from such injuries alone, within ninety days from the date of accident, the company will pay the sum specified opposite such disability; or, if such injuries shall, independently and exclusively of all other causes, immediately, wholly and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability and within two hundred weeks from the date of accident, shall result in any one of the disabilities enumerated below, the company will pay the sum specified opposite such disability, and in addition, weekly indemnity as provided in part B to the date of death, dismemberment or loss of sight. "For loss of life (including accidental death by freezing, gas or poison, but excepting suicide sane or insane) the principal sum." Then follows a list of amounts that would be paid in the event of loss of one hand, one foot, one eye, etc., which list has nothing whatever to do with this case and is therefore not set forth in detail. The policy then proceeds as follows: |