Denning v. Mispagel
| Decision Date | 07 March 1924 |
| Docket Number | 23651 |
| Citation | 260 S.W. 72 |
| Parties | DENNING v. MISPAGEL et al |
| Court | Missouri Supreme Court |
B. H Dyer, of St. Charles, for appellant.
C. W Wilson, of St. Charles, for respondents.
Statement.
The plaintiff brought this suit in the circuit court of St. Charles county to partition certain real estate situated in that county, particularly described in the petition. The trial resulted in findings of fact and a decree for the defendants, and after moving unsuccessfully for a new trial, the plaintiff duly appealed the cause to this court.
The facts of the case are few and undisputed. The plaintiff was seized and owned an undivided eight-tenths of land in fee, and in addition to said eight-tenths he owned a life estate for the life of another person, in the other two-tenths; that Charles Mispagel owned the remainder in one of the said tenths of which the plaintiff owns the life estate, and the other seven defendants own each one-seventeenth (together one-tenth) subject to plaintiff's life estate. These several stated interests comprised the entire estate.
The land was owned in fee by one Anton F. Orf at the time of his death, which occurred on the ___ day of November, 1908. Orf left a will by which he disposed of this land, which was duly probated in the probate court of St. Charles county on November 25, 1908. That clause of the will disposing of the land reads:
The widow and all the ten children named in the will survived the testator. The widow, Margaret Orf, is still living. Some time subsequent to the establishment of said will, plaintiff acquired the life estate of Margaret Orf and also acquired the remainder interests of the following remaindermen: Albert Wm. Orf, Frank C. Orf, Mrs. Pauline Denker, Andrew Orf, Clem H. Orf, Ann J. Orf, Daniel Jos. Orf, and Cletus J. Orf. Defendant Charles Mispagel acquired the remainder interest of remainderman Anton J. Orf.
Mrs. Elizabeth Mispagel, one of the devisees under said will of one-tenth of the remainder, died after the death of her father, survived by seven children, the defendants Albert Mispagel, John Mispagel, Elnora Mispagel, Clarence Mispagel, Luanna Mispagel, Bernadice Mispagel, and Edith Mispagel. On the death of Mrs. Elizabeth Mispagel, her interest in said land passed to her said seven children in equal shares.
Defendants Charles Mispagel, Albert Mispagel, John Mispagel, and Elnora Mispagel filed their separate answers to plaintiff's amended petition, and minor defendants Clarence Mispagel, Luanna Mispagel, Bernadice Mispagel, and Edith Mispagel, by Charles Mispagel, their duly authorized guardian ad litem, filed their separate answer to said amended petition. These answers are in substance the same, and they set out the facts related above as to the ownership by Anton F. Orf, his death, his leaving a last will disposing of said land as above indicated; that Elizabeth Mispagel had died since the death of her father, and her share in the land had passed to her children above named, who still own the interest thus acquired; that Charles Mispagel owns an undivided one-tenth. Margaret Orf, the widow, is yet living and that the said interests of the defendants are subject to the life estate of Margaret Orf.
Defendants in their said answers claimed that plaintiff was not entitled to a judgment for partition for the reason that a partition would be in contravention of the provisions of the will of said Anton F. Orf and contrary to law, and prayed for a dismissal of plaintiff's petition. Plaintiff thereupon demurred to these answers of defendants on the ground that said answers showed no facts denying the right to partition as prayed by plaintiff. These demurrers were overruled by the court, the court holdi...
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