Lilly v. Menke

• Decision Date: 04 December 1894
• Citation: 126 Mo. 190,28 S.W. 643
• Court: Missouri Supreme Court
• Parties: LILLY et al. v. MENKE et al.<SMALL><SUP>1</SUP></SMALL>

28 S.W. 643

126 Mo. 190

LILLY et al. v. MENKE et al.¹

Supreme Court of Missouri.

December 4, 1894.

CONSTRUCTION OF WILL — DEVISE TO WIFE — ELECTION TO TAKE STATUTORY SHARE — PARTITION — PARTIES — PLEADING — REVIEW ON APPEAL — OBJECTIONS NOT RAISED BELOW.

1. Testator devised his estate to his wife for life, with a remainder over of one-half to a religious association, and one-half to the heirs and legal representatives of his wife. The wife renounced her rights under the will, and elected to take, in her right of dower, under Rev. St. 1879, § 2190, one-half of said estate absolutely, subject to debts. Held, that the will operated only upon the remaining half, and that the religious association, as a devisee in remainder, took one-fourth of the whole.

2. Under Rev. St. 1879, §§ 3775, 3776, providing that the supreme court shall "examine the record" and give a proper judgment, a decree in an action for partition, erroneous because rendered without bringing in all necessary parties, will be reversed, though no motion in arrest, or exception, was made in the trial court.

3. A petition for partition under the terms of a will, which discloses interests in the land of persons not made parties to the suit, does not state a sufficient cause of action, either in equity or under Rev. St. 1889, §§ 7134, 7135, 7144, 7145, requiring that each party in interest, whether in possession or otherwise, be made a party to the petition.

4. In an action for the partition of land, an objection to the petition, arising from a defect of parties, is not waived by failure to demur or to move in arrest of judgment, though such defect was apparent on the face of the petition.

5. In an action for a partition, an allegation that defendant has been in possession of the property, and has received the rents and profits thereof, is not sufficient to support a claim for the rents, in the absence of an allegation that plaintiff was denied a joint occupancy of the premises.

6. An action for waste against one in possession of land as executor under the will of the former owner is improperly joined with one for the partition of the property to which he has been made a party in his individual capacity.

7. A married woman is not liable for waste committed by her husband in his representative capacity as executor.

8. An order of distribution in the settlement of an estate, made under Rev. St. 1889, §§ 242, 243, which provide that notice in writing of such distribution shall be given to each person entitled to it, is void as against distributees who were not so notified.

9. An administrator pendente lite, appointed under Rev. St. 1889, § 13, to administer the estate during the contest of the will, and "account for and pay over all money and property to the executor or regular administrator when qualified to act," cannot assume, because such executor is dead, to make such a final settlement with certain of the distributees as will bind all, unless he is also acting as administrator with the will annexed, and the required notice of such distribution is given to all entitled to it.

Barclay, J., dissenting.

In banc. Appeal from circuit court, Livingston county.

Petition by John J. Lilly, Patrick O'Malley, Thomas Clark, and Michael Holwell, trustees, in behalf of themselves and all the other members of the "Immaculate Conception," the Catholic church at Lexington, composing an unincorporated ecclesiastical body, against John Smith, Maria T. Menke, Charles Menke, her husband, and others, heirs at law of Ilett Tobbein, deceased, for a partition of the latter's estate according to the terms of his will. Ilett Tobbein died in 1879, and in the same year his will was rejected for probate by the probate court, and the estate ordered into the hands of the public administrator. The plaintiffs here brought suit to establish the will as an incorporated society, and obtained a judgment in their favor, which was reversed (82 Mo. 418) on the ground that they were not proper proponents. Plaintiffs then brought another action with the same object in view, but on an amended petition, in their capacity as trustees for themselves and others, members of an unincorporated religious association, and a judgment establishing the will was affirmed (13 S. W. 1060), and on rehearing reaffirmed (15 S. W. 618). The testator's wife, Catherine Tobbein, had renounced her rights under the will, and taken those of dower under the statute. She had since become deceased, and by will had made defendant Maria T. Menke her residuary legatee, and had named defendant Charles Menke as executor. Plaintiffs sought, by amending their petition, to maintain their action against the defendants Menke alone, and obtained judgment in their favor as against them, setting aside the claims of all the other defendants, devisees in remainder under the terms of the will. From this, defendants appeal. Reversed.

Davis, Loomis & Davis, for appellants. Alex. Graves and Mansur & McLaughlin, for respondents.

GANTT, J.

This is a proceeding in equity to obtain a partition of the estate of Ilett Tobbein, late of Caldwell county, Mo., and is the culmination of the litigation to establish the last will of said Tobbein. Catholic Church v. Tobbein, 82 Mo. 418; Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618. On the 16th day of July, 1890, the plaintiffs filed a petition in the office of the circuit clerk of Caldwell county, Mo., for the partition of the estate of Ilett Tobbein, deceased, among and between the devisees of said Ilett Tobbein, in accordance with the last will and testament of said Tobbein, which was set forth in haec verba in the petition, and stated that the incorporated Catholic church at Lexington was by said will the owner in fee of one-half of said real estate, and that the defendants, John Smith, Agnes Polking, William Polking, Maria T. Menke and Charles Menke, her husband, Upupt Mippin, Herman Bremmer, Margaret Bremmer, Joseph Tobbein, Elizabeth Swartz, John Swartz, Elizabeth Vieljans, and other nonresidents, nephews and nieces of Ilett Tobbein, deceased, and Bernard Henry Tobbein and Mary Rabenberg and Stephen Rabenberg, claimed to have different interests in the other half of said lands, and that in truth and in fact the title to the remaining half of said lands was in said defendants, or some of them; but whether it belonged to said defendants equally or not plaintiffs had not sufficient information to state, but that since September 1, 1887, the defendants had been in possession of said property, receiving the rents and profits thereof. There was an allegation that, owing to the number of interests, partition in kind could not be equitably made, and they asked for a sale and an ascertainment of the various rights of all the coparceners. Summons was duly served on defendants Mary Rabenberg and Stephen Rabenberg and Bernard Tobbein, and an order of publication was issued against the other defendants. At the October term, 1890, the defendants John Smith, Agnes Polking, William Polking, Maria T. Menke and Charles Menke, her husband, and Elizabeth Smith, who had not been sued, but entered her appearance, filed answer in which they denied the title of the church to one-half, and then averred that Catherine Tobbein, the wife of Ilett Tobbein, and named in his will, survived him, and within one year after his death, and after his will was offered for probate, filed in the office of the probate court of Caldwell county her declaration of her election to renounce the provisions of said last will, and elected to take one-half of all the personal and real estate belonging to said Ilett Tobbein absolutely; that by virtue of said election she became seised of one-half of said real estate; that afterwards, on January 12, 1882, she made her last will and testament devising her estate to Elizabeth Smith, Agnes and William A. Polking, and Maria T. Menke, and appointed Charles Menke her executor, and that afterwards, on the 14th of July, 1887, said Catherine Tobbein died; that by virtue of the last will of Catherine Tobbein the said Maria Menke became the owner of one-half of said real estate, charged with the legacies in her will mentioned, and that, by reason of the election of Catherine Tobbein, the plaintiffs and the said defendants became the owners in fee of the remaining half of the real estate of Ilett Tobbein, — that is, plaintiffs were entitled to one-fourth, and defendants to one-fourth, of said lands, or one-half each of the half remaining after said election by said Catherine, — and asked for partition in the proportions stated in their answer. They then averred that the other defendants were unnecessary parties, having no interest therein, and denied possession and receipt of rents and all waste. Plaintiffs thereupon applied for and obtained a change of venue to the circuit court of Livingston county, at the October term, 1890. The cause was continued in Livingston county until the November adjourned term. On the ninth day of the September term, 1891, of the circuit court of Livingston county, the following entry appears of record:

"John J. Lilly et al. vs. John Smith et al. Plaintiffs, by attorney, file second amended petition herein, omitting the names of some of the parties defendants, and changing the title of the cause, which said petition is in words and figures as follows, to wit:

"`Amended petition: John J. Lilly, Patrick O'Malley, Thomas Clark, and Michael Holwell, trustees who sue for themselves and the other members of the Catholic church at the city of Lexington in the state of Missouri, an unincorporated ecclesiastical body, plaintiffs, vs. Maria T. Menke and Charles Menke, her husband, defendants. Plaintiffs, for their second amended petition filed herein, aver that they are now, and have been for more than six years last past, elected, qualified, and acting trustees of the unincorporated ecclesiastical body existing in the city of Lexington in the state of Missouri, and...