Dobschutz v. Dobschutz

Decision Date05 July 1919
Docket NumberNo. 20269.,20269.
PartiesDOBSCHUTZ et al. v. DOBSCHUTZ et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Genevieve County; Peter H. Huck, Judge.

Action by John Calvin Dobschutz and others against Louisa Dobschutz and others. Judgment for plaintiffs as prayed, and defendants appeal. Affirmed.

John J. O'Connor, of St. Louis, for appellants.

Charles Fensky, of St. Louis, and M. E. Rhodes, of Potosi, for respondents.

WHITE, C.

This action seeks the partition of a large tract of land in St. 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, Ill., 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, Ill., on July 31, 1913, and a copy, duly authenticated, filed for record in the office of the recorder of deeds of St. 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 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 nonresident testator, but his will will take effect and be interpreted according to the law of this state. Section 567, R. S. 1909; Hughes v. Winkleman, 243 Mo. 81, loc. cit. 92; 147 S. W. 994, L. R. A. 1916A, 1007; Keith v. Keith, 97 Mo. 223, loc. cit. 230, 10 S. W. 597. 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, R. S. 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 the...

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