Doerner v. Doerner

• Decision Date: 26 March 1901
• Citation: 61 S.W. 801,161 Mo. 399
• Parties: DOERNER v. DOERNER et al.
• Court: Missouri Supreme Court

61 S.W. 801

161 Mo. 399

DOERNER v. DOERNER et al.

Supreme Court of Missouri, Division No. 2.

March 26, 1901.

WILLS — DEVISE TO CLASS — CONSTRUCTION — RIGHT TO PARTITION.

1. Where testator made a devise to the children of his daughter as a class, with the evident expectation that other children would be born to her, the estate in remainder vests in the persons who were in esse when the will took effect, which estate will open during the continuance of the particular estate, and let in the after-born children of the daughter.

2. Where a will provided that, until the youngest of the children of the testator's daughter became of age, the daughter should have a right to the rents and profits, and that at such time her rights to the rents and profits should cease except as to one-third of the real estate for and during her natural life, when the youngest child reached majority, the mother and her children became tenants in common so as to authorize partition.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by Charles Augustus Doerner against Eliza and Frances Doerner. From the judgment, Eliza Doerner appeals. Modified.

Suit for partition (brought March, 1897), and for sale of certain real estate, and an accounting for rents and profits, and for general relief. Whether the suit could be maintained depended on the provisions of the will of the testator, Ludwig Seitz, who died May 12, 1868. The evidence shows that, at the date of Ludwig Seitz's will (March, 1861), defendant Eliza Doerner had one child living, defendant Alwine Weber. At the date of the death of Ludwig Seitz she had three children living, defendants Alwine Weber, Emilie Zuendt, and Hans Egmund Doerner (born two months afterwards). Thereafter three other children were born to her, to wit, the plaintiff, Charles Augustus Doerner, the defendant Cecilie Jay, and this respondent, the youngest child, Frances Doerner, who attained 21 years of age February 9, 1897, and prior to the institution of this suit. Louisa Seitz died January, 1894. The testator makes provision for his wife by his will, in the following clause: "I devise my beloved wife, Louisa Seitz, the house in which I now live, and the buildings appurtenant to the same, being on lot No. 10, in block No. 545, said lot containing 25 feet front on Franklin avenue, by 155 feet, more or less, to an alley 20 feet wide, and the household furniture of every kind. Further, a yearly revenue of $600 to be paid in quarterly rates of $150, in manner hereinafter provided for, and also the whole amount of interests of the stock on hand, which stock of wines, liquors, vinegars, etc., belonging to my business, is to be capitalized immediately after my decease; and the interests of the capital arising therefrom are to be paid to my said wife at the rate and in manner stipulated by me as follows in this my last will and testament. To have and to hold to her, my said beloved wife, Louisa Seitz, for the term of her natural life, in lieu and in full satisfaction of her dower in all lands and tenements whereof I shall die seised." He next provides for his son Charles Seitz by giving him a large amount of personal property and several parcels of real estate. Then follow the provisions of the will with respect to the testator's daughter Eliza Doerner and her children, by which the property described in plaintiff's petition, and which is now sought to be partitioned, is devised as follows: "I give and bequeath to my daughter Eliza, wife of August Doerner, all the not-incumbered income and profits of all and every the real estate, as well as the personal property, given, bequeathed, and devised by this, my last will and testament, unto my grandchild or children, the child or children of her, my said daughter Eliza Doerner, to use the same for the expenses of the maintenance and education of her child or children until she, he, or they shall have arrived at the age of 21 years, and, after he, she, or they shall have arrived at the said age, I order and declare that by these presents I give, devise, and bequeath unto my said daughter Eliza Doerner, for the term of her natural life, the lawful right of dower in all the real and personal estate as following, bequeathed and devised to her...