Johnson v. Woodard, 30635
Decision Date | 21 February 1961 |
Docket Number | No. 30635,30635 |
Citation | 343 S.W.2d 646 |
Parties | Stella JOHNSON, (Plaintiff) Appellant, v. Mary WOODARD and Regina Goff, (Defendants) Respondents. |
Court | Missouri Court of Appeals |
Jerome F. Duggan, Sidney W. Horwitz, St. Louis, for appellant, Dubinsky & Duggan, St. Louis, of counsel.
Sidney R. Redmond, St. Louis, for respondents.
This is an action to partition certain real estate. A motion to dismiss the petition was filed by the defendants. This motion was sustained and the petition dismissed. The plaintiff appeals from the judgment dismissing the action.
The petition, starting at paragraph 2 thereof, states:
Paragraphs 4 and 5 describe the real estate, which is located in the City of St. Louis, and the sixth paragraph sets out Article II of the last Will and Testament of Sara C. Young, which is as follows:
'I give, bequeath and devise my home located at 4562 Labadie Avenue in the City of St. Louis, Missouri, and any and all other real estate wheresoever situated to my beloved sisters, Mary V. Woodward and Stella Johnson, and my beloved niece, Regina Goff, Ph. D., to share equally, and to the survivor of them.'
This is followed by formal allegations petitioning for a sale of the property and a division of the proceeds.
The motion to dismiss the petition was predicated upon the theory that to partition the real estate would be in violation of Civil Rule 96.13, V.A.M.R.
The question presented by this appeal is whether or not the petition is sufficient to grant partition of the real estate involved. It set forth the clause of the Will by which the plaintiff seeks to establish a title subject to partition. The defendants maintain that by that clause it was the obvious intent of the testatrix to limit the estate in the plaintiff and defendants to a life estate with the remainder in fee to the one of them that survived the others. It is contended that by reason of this a partition of the real estate would defeat the Will of the testatrix by destroying the right of survivorship. It is stated that this is contrary to Civil Rule 96.13, V.A.M.R., which provides:
'No partition or sale of lands, tenements or hereditaments, devised by any last will shall be made under the provisions of this Rule relating to partition, contrary to the intention of the testator, expressed in any such will.'
Conversely, the plaintiff appellant states that to so construe the Will would be violative of Section 442.450 RSMo 1949, V.A.M.S., which is as follows:
'Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or...
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...of whether it has been challenged. Hammonds v. Hammonds, Mo.App., 289 S.W.2d 903, 904(1), and cases there cited; Johnson v. Woodard, Mo.App., 343 S.W.2d 646, 648(1). Innumerable opinions have considered what is required for a case to involve title to real estate within the meaning of our co......
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Johnson v. Woodard
...on the ground that the case involves title to real estate within the meaning of the Constitution, Art. V, Sec. 3, V.A.M.S. Johnson v. Woodard, Mo.App., 343 S.W.2d 646. However, the Supreme Court, deciding that title to real estate in the constitutional sense was not presented, retransferred......
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Johnson v. Woodard
...Court on the ground that the case involves title to real estate within the meaning of Constitution, Art. V, Sec. 3, V.A.M.S. Johnson v. Woodard, Mo.App., 343 S.W.2d 646. Stella Johnson's amended petition for partition alleged that Sara C. Young, fee simple owner of the land, devised it by h......