Faudi v. Dobler, 22341.

• Decision Date: 02 May 1933
• Docket Number: No. 22341.,22341.
• Citation: 59 S.W.2d 798
• Parties: FAUDI et al. v. DOBLER et al.
• Court: Missouri Court of Appeals

59 S.W.2d 798

FAUDI et al. v. DOBLER et al.

No. 22341.

St. Louis Court of Appeals. Missouri.

May 2, 1933.

Appeal from St. Louis Circuit Court; Albert D. Nortoni, Judge.

"Not to be published in State Reports."

Suit by Lina Faudi and another against Marie Dobler and others. From a judgment in favor of the defendants after their demurrer to the petition was sustained, the plaintiffs appeal.

Affirmed.

Adolph Thym, of St. Louis, for appellants.

John T. Manning and Wm. H. Corcoran, Jr., both of St. Louis, for respondents.

BECKER, Presiding Judge.

This is a suit in partition. The defendants filed a demurrer to plaintiffs' petition contending that it appears on the face thereof that the said lands are not subject to partition because it is in contravention of the will of Anna Bach, deceased, under which plaintiffs claim title. The court sustained the demurrer. Plaintiffs, refusing to plead further, bring this appeal.

The allegations of plaintiffs' petition, which are material for the determination of the question here on appeal, are in substance that Anna Bach died testate on December 9, 1929, seized and possessed of certain real estate in the city of St. Louis, Mo., known as 3819-19a Wisconsin avenue; that the second clause of her will provides: "I give to my three children, namely, Lina Faudi, Marie Hammer, and Chas. Bach my real estate known as No. 3819 Wisconsin Avenue, St. Louis, Mo. in equal shares, with this provision, however that my blind daughter Anna Bach may live on the first floor of that house as long as she is alive without paying any rent repairs or taxes on same."

That administration of the estate of said Anna Bach has been completed and final settlement made therein; that partition in kind cannot be had without great prejudice to the interests of the parties, and prays that partition be had of said real estate subject to the life estate of Anna Bach created under the will of the said Anna Bach, deceased.

Appellants here contend that partition is not in contravention of the will of Anna Bach, deceased, and that, therefore, the trial court erred in sustaining defendants' demurrer.

After a careful consideration of the will in question, we are clear in the view that, under the true intent and meaning of the will of testatrix, partition of the property in question is in contravention thereof, and that defendants' demurrer was well ruled.

Section 567, Rev. Stat. of Mo. 1929 (Mo. St. Ann. § 567), provides that "all courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them."

Section 1557, Rev. Stat. of Mo. 1929 (Mo. St. Ann. § 1557), provides that "no partition or sale of lands, tenements or hereditaments, devised by any last will, shall be made under the provisions of this article, contrary to the intention of the...