Dobschutz v. Dobschutz

• Citation: 213 S.W. 843,279 Mo. 120
• Parties: JOHN CALVIN DOBSCHUTZ et al. v. LOUISA DOBSCHUTZ et al., Appellants
• Decision Date: 05 July 1919
• Court: United States State Supreme Court of Missouri

213 S.W. 843

279 Mo. 120

JOHN CALVIN DOBSCHUTZ et al. v. LOUISA DOBSCHUTZ et al., Appellants

Supreme Court of Missouri, Second Division

July 5, 1919

Appeal from Ste. Genevieve Circuit Court. -- Hon. Peter H. Huck Judge.

Affirmed.

John J O'Connor for appellants.

(1) Plaintiffs are barred from recovering under the second cause of action by Sec. 2569, R. S. 1909, which says that "no partition or sale of lands devised by any last will shall be made contrary to the intention of the testator, expressed in any such will." Stuart v. Jones, 219 Mo. 635; Sikemeier v. Galvin, 124 Mo. 367; Cubbage v Franklin, 62 Mo. 364; Cannon v. Cannon, 175 Mo.App. 88; Stevens v. De La Vaulx, 166 Mo. 20; Stevens v. Larwill, 110 Mo.App. 151. (2) Land owned in this State by a deceased non-resident shall be disposed of according to his last will. Sec. 260, R. S. 1909. (3) Where a remedy is part of an entire and complete scheme of law as in the "law of partition," and one adopts that remedy, he must recover under that law or fail. If plaintiffs have mistaken their remedy, equity will not aid them. State ex rel. v. Allen, 45 Mo.App. 551.

Charles Fensky and M. E. Rhodes for respondents.

(1) A will devising real estate situated in the State of Missouri must be executed according to the laws of this State. Sec. 567, R. S. 1909. (2) If any person make his last will and die leaving a child or children, or descendant of such child or children, not named or provided for in said will, such testator, so far as regards such child or children or their descendant not provided for, shall be deemed to die intestate. Sec. 544, R. S. 1909; Bradley v. Bradley, 24 Mo. 311; Hargadine v. Pulte, 27 Mo. 423; Thomas v. Block, 113 Mo. 66; Breidenstein v. Bertram, 198 Mo. 328; Vantine v. Butler, 250 Mo. 451. (3) In partition the interest of children omitted from the will can be determined, and all rights and equities between all persons interested in the real estate can be determined, in such proceeding. Breidenstein v. Bertram, 198 Mo. 344. (4) Under the law plaintiffs' rights secured to them by Sec. 554, R. S. 1909, are not affected, whether a will is established or annulled, and their right to maintain this action for their share of said real estate situated in Missouri would be the same as though their father died without a will. Vantine v. Butler, 250 Mo. 451.

WHITE, C. Mozley, C., concurs; Railey, C., not sitting.

OPINION

WHITE, C.

This action seeks the partition of a large tract of land in Ste. Genevieve County. The plaintiffs are four children and heirs, of whom there were ten in all, of Moritz J. Dobschutz, deceased; the defendant, Louisa Dobschutz, is his widow, and the other defendants his six remaining children.

Moritz Dobschutz, who owned the land at the time of his death, lived and died at Belleville, Illinois, and reared his family there. All the parties were at all times residents of the State of Illinois. The land was wild; neither Dobschutz nor any of his children ever lived on any part of it. The petition alleges the relationship of the parties, the death of Moritz Dobschutz, that the widow has a dower, and the plaintiffs and remaining defendants are tenants in common of the property, subject to said dower, each being entitled to an undivided one-tenth interest, and prays for partition in the usual form.

Defendants' answer, admitting the ownership of the land in Moritz Dobschutz at the time of his death, set out at length in defense the will of Moritz Dobschutz, which was admitted to probate in the probate court of St. Clair County, Illinois, on July 31, 1913, and a copy, duly authenticated, filed for record in the office of the Recorder of Deeds of Ste. Genevieve County. Moritz died June 24, 1913. The will left all the property, real and personal, of the testator to his wife Louisa Dobschutz. No mention of any kind of any of testator's children was made in the will. On a trial of the case there was a judgment for plaintiffs as prayed in the petition, and the defendants appealed.

I. The rule prevails, not only in this State, but is of universal application, that the title to land can be acquired only according to the law of the place where it is situate. Land may be devised in this State by a non-resident testator, but his will will take effect and be interpreted according to the law of this State. Section 567, Revised Statutes 1909. [Hughes v. Winkleman, 243 Mo. 81, 147 S.W. 994; Keith v. Keith, 97 Mo. 223, l. c. 230.] The will of Moritz Dobschutz can have the same effect and only the effect it would have if he had been a resident of this State and his will had been originally proved in this State.

II. The appellants assert that the judgment here was erroneous because in conflict with Section 2569, Revised Statutes 1909 which provides that no partition of lands devised by any last will shall be made contrary to the intention of the testator as expressed in the will. It is argued that having elected to pursue the statutory remedy by proceeding in partition, the plaintiffs are bound by all the provisions of the statute relating to partition, including that section. The will gives the real estate in dispute in fee simple to the widow, Louisa Dobschutz; therefore the partition decree is in direct conflict with the very statute under which ...