
    HENRY ELSTROTH et al., Appellants, v. WILLIAM R. YOUNG, Administrator Estate of FRITZ DICKMEYER, Respondent.
    St. Louis Court of Appeals,
    April 9, 1901.
    1. Administrator’s Commission: STATUTORY CONSTRUCTION: TAXES: EXPENSES OE ADMINISTRATION. An administrator is entitled to take out liis commission (section 222, Revised Statutes 1899), taxes paid by him, and expenses of administration, in-eluding reasonable compensation for necessary legal assistance, whether in this matter or others arising out of his duties.
    2. -: -: -: HOMESTEAD. But he is not entitled to commission on homestead portion.
    3. -: -: -: CREDITORS. And the creditors must be postponed to the necessary burdens of administration.
    4.j -: -: DEMANDS, PAYMENT OP. And demands should be paid according to classification and 'priority, whether they are paid out of realty or personalty.
    5. -: -: MINORS, ALLOWANCE TO. But the allowance to minors stands on a different footing. It can only be appropriated out of the personal assets and can not be made good from the proceeds of land sales when the personalty is deficient.
    Appeal from Lincoln Circuit Court. — Hon. Elliott M. Hughes, Judge.
    AeEIRMED.
    STATEMENT OE THE CASE.
    This litigation has engaged the attention of the court twice before. 78 Mo. App. 561; 83 Mo. App. 253. Reference is made to those opinions for most of the facts. The appeal in the present instance is from an order sustaining respondent’s motion for a new trial. The court assigned no reason for granting it. Appellants presented the last opinion and mandate and, the ages of the minor children being admitted, the present worth of their homestead right in the surplus cash arising from the sale-of their father’s land under a deed of trust executed in his lifetime was calculated. Respondent offered to prove that he had in his hands only $66.54 besides said surplus, that the minors were under sixteen years of age and no allowance had been made to them for their year’s support, that he had paid taxes, probate and printing charges and costs of the former appeals and that if the surplus proceeds of tbe land left, after deducting tbe children’s homestead interest, was distributed among tbe creditors of tbe estate, there would be no funds to pay tbe costs of administration, tbe defense of this litigation and tbe allowance to tbe minors. He also offered to prove that lie bad paid an attorney’s fee of $100 incurred in connection with bis official duties. The court excluded tbe evidence as incompetent under tbe mandate of this court. Declarations of similar purport were refused. It is not altogether clear which of tbe above items have been paid out of tbe assets assessed by which they were reduced to $66.54. Tbe present worth of tbe homestead right was found to be $816.16, which, being deducted from the surplus of tbe proceeds of tbe land, leaves $951.20 for distribution.
    
      Martm & Woolfolh for appellant.
    Tbe only question presented by this appeal is, whether tbe circuit court was not required to follow tbe mandate of this court and do tbe two things therein directed: first, to ascertain tbe homestead interest of the minors, deduct it from tbe fund in defendant’s bands, and, second, distribute the remainder of tbe $1,767.36 to Dickmeyer creditors. There was no other funds in tbe bands of tbe defendant sought to be distributed and over which this controversy has been waged for over three years except tbe $1,767.36 received from tbe sale of tbe land, and hence, there was no other funds to which the directions of this court could apply. , The mandate of this court was: that said cause be remanded to the aforesaid circuit court of Lincoln county with instructions to ascertain and deduct from the funds in the hands of the defendant the present worth of the homestead interest of the minor children in $1,500 and the remainder be ordered distributed among the creditors of Dickmeyer. The circuit court in the judgment followed tbe instructions of tbis court, found tbe present value of tbe homestead of tbe minors and then made distribution of tbe remainder to Diekmeyer creditors, but upon defendant’s motion set tbis aside. Hence v. Railroad, 62 Mo. App. GO-63; State ex rel. v. Edwards, 144 Mo. 467; Rees v. McDaniel, 131 Mo. 681; Stevnip v. Hornback, 109 Mo. 272; Tour-ville v. Railroad, 148 Mo. 615-623.
    
      Norton & Avery for respondent.
    There is but one question in tbe case. Conceding that it is tbe duty of tbe lower court to follow tbe directions of tbe mandate of tbe superior court we will admit tbe principle contended for by appellant is correct; its application is erroneous. It is undoubtedly true, that when a cause is remanded by an appellate tribunal, with spécial direction, tbe jurisdiction of tbe lower court is limited to tbe precise action which it is authorized' by tbe mandate to take; Tbe only question then is, what was tbe proper application of tbis mandate? No person for a moment would think that any court would so order distribution of an estate that tbe administrator, who is an officer of tbe court, would be compelled in tbe administration of that estate to lose not only bis commission and other labor, but to lose, as in tbis case, some two hundred dollars that-he bad paid from bis funds in tbe protection of the estate. Tbe words of tbe mandate directed tbe lower court “to ascertain and deduct from tbe funds in tbe bands of tbe defendant tbe present value of tbe homestead interest of tbe children and that tbe remainder be ordered distributed among tbe creditors of Dickmeyer and tbe cost of appeal be taxed equally against tbe parties.”
   GOODE, J.

Tbe mandate directing tbe surplus, less the value of the homestead interest; to be distributed among the creditors, neither said nor meant that none of it could be used for anything else. There are some deductions which ought to be first made. The administrator is entitled to take out his commission (section 222, Revised Statutes 1899), taxes paid by him and expenses of administration, including reasonable compensation for necessary legal assistance whether in this matter or others arising out of his duties. He is not entitled to commission on the homestead portion. What the second appeal determined was, that the residuary surplus may be applied by this probate proceeding to the payment of the demands. But the creditors must be postponed to the necessary burdens of administration; that far this money is like the other assets. Dix v. Morris, 1 Mo. App. 93; Crenshaw v. Bentley, 31 Mo. App. 75; Gov. ex rel. v. Chouteau, 1 Mo. 131. The demands should be paid according to their classification and priority. This is true whether they are paid from the proceeds of personalty or realty. The distinction between legal and equitable assets and the doctrine of marshalling, is obsolete in this State. Titterington v. Hooker, 58 Mo. 593.

The allowance to the minors stands on a different footing. It can only be appropriated out of the personal assets and can not be made good from the proceeds of land sales when the personalty is deficient. Ritchey v. Withers, 12 Mo. 556; In re Motiers’ Estate, 7 Mo. App. 514; Jewell v. Knettle, 39 Mo. App. 262; Paine v. Paulk, 39 Me. 18; Jelly v. Elliott, 1 Ind. 119; Thompson on Homesteads and Exemptions, sec. 910. The surplus went to the administrator by the terms of the deed of trust, but for which it would have gone, according to our law, .to the heirs until subjected by a proper proceeding to the payment of debts. It retains the attributes of real estate in respect to being exempt from the statutory allowances. Cox v. McBurney, 2 Sand. 561; Allen v. Allen, 12 R. I. 301; Barnum v. Meserve, 8 Allen (Mass.), 158; Dunning v. Ocean Bank, 61 N. Y. 497; Shaw v. Loadley, 8 Blackf. 165; Jones on Mort., sec. 1931; 1 Woerner’s Ad. Law, 595. The net surplus should be disposed of in the manner indicated.

Judgment affirmed.

All concur.  