Kauffmann et al. v. Kauffmann et al.

• Decision Date: 08 December 1931
• Docket Number: No. 20374.,20374.
• Citation: 43 S.W.2d 879
• Parties: LOUIS R. KAUFMANN AND CAROLINE KAUFMANN, HIS WIFE, APPELLANTS, v. OTTO H.F. KAUFMANN AND MAUD T. KAUFMANN, HIS WIFE, ALBERT G.H.J. KAUFMANN AND RETTIE THOMPSON KAUFMANN, HIS WIFE, MATILDA F. PETZOLDT AND OTTO PETZOLDT, HER HUSBAND, LILLIAN RUDERT, A SINGLE PERSON, FLORA RUDERT BRINKOPF AND HENRY BRINKOPF, HER HUSBAND, OTTO RUDERT AND CORA RUDERT, HIS WIFE, AND EDWIN RUDERT AND FRANCES RUDERT, HIS WIFE, RESPONDENTS.
• Court: Missouri Court of Appeals

43 S.W.2d 879

LOUIS R. KAUFMANN AND CAROLINE KAUFMANN, HIS WIFE, APPELLANTS, v. OTTO H.F. KAUFMANN AND MAUD T. KAUFMANN, HIS WIFE, ALBERT G.H.J. KAUFMANN AND RETTIE THOMPSON KAUFMANN, HIS WIFE, MATILDA F. PETZOLDT AND OTTO PETZOLDT, HER HUSBAND, LILLIAN RUDERT, A SINGLE PERSON, FLORA RUDERT BRINKOPF AND HENRY BRINKOPF, HER HUSBAND, OTTO RUDERT AND CORA RUDERT, HIS WIFE, AND EDWIN RUDERT AND FRANCES RUDERT, HIS WIFE, RESPONDENTS.

No. 20374.

St. Louis Court of Appeals. Missouri.

Opinion filed December 8, 1931.

Appeal from the Circuit Court of Cape Girardeau County. — Hon. Frank Kelly, Judge.

REVERSED AND REMANDED.

Spradling & Dalton for appellants.

(1) If the terms of the will caused an equitable conversion of the real estate into money upon the death of the widow, still the written agreement of all the heirs not to sell under the will and the renting and retaining of the property for two years prior to this suit was an election to reconvert the property and plaintiffs are entitled to partition. Nall v. Nall, 243 Mo. 247; Griffith v. Witten, 252 Mo. 627; Turner v. Hine et al., 248 S.W. 933. (2) Even though the will directs that the real estate be sold and the proceeds divided the heirs may elect to retain the land as such, and may enjoin a sale thereof by the executor. Gilbert v. Cosgrove, 193 Mo. App. 419, 185 S.W. 181, 182; Conversion and Reconversion, 6 R.C.L. 1090, 1091; 13 C.J. 885-891. (3) The answer admits that "the parties to this cause are seized of the said real estate as tenants in common for the fractional amount plaintiffs allege" and though the will directed a sale of the real estate there was no actual conversion prior to such sale and plaintiffs were entitled to reconvert it prior to that time and having done so, plaintiffs are entitled to partition. Eneberg v. Carter, 98 Mo. 647, 651; Compton v. McMahan, 19 Mo. App. 494. (4) "In the present case, there was certainly no express devise in fee to the executor, nor are there any such words in the will as to raise a fee in him by force of a strong implication. Therefore, the fee remained in the heirs at law, both by the devise to them, as well as by the statute of descents, until it should be divested by a sale by the executor under the terms of the will; and until such sale no conversion could occur... . I have been able to find no case where the doctrine of equitable conversion has been so applied as to cut out and dominate the title of the heir except where the donee of the power took a fee by necessary and inevitable implication, or where such fee was in express terms conferred upon such donee; otherwise the title remains vested in the heirs until the donee of the power actually exercises it... ." Eneberg v. Carter, supra; See also, Donaldson v. Allen, 182 Mo. 626, 647; Littleton v. Addington, 59 Mo. 275, 278-279. (5) The real estate upon the death of the testator passed to his widow and then to his heirs, subject to the general power of disposal conferred in the will. The executors after they qualified had no interest in the land, but at most a naked power to sell which was not exercised prior to their discharge. Aubuchon v. Lory, 23 Mo. 99; Emmons v. Gordon, 140 Mo. 490; Barnard v. Keathley, supra. (6) The original executors having been discharged almost ten years prior to this suit, and all the parties to this suit having agreed in writing not to sell the property under the will partition in this case could not the contrary to the will but would effectuate the purpose of the testator under the fourth division of the will. Barnard v. Keathley, 230 Mo. 209; Llewellyn v. Llewellyn, 122 Mo. App. 467; Thompson v. McClernon, 142 Mo. App. 429; Nall v. Nall, supra. (7) That the court cannot order a partition contrary to the provisions of the will means that it will not disturb the relative claims of the respective parties named in a will to their distributive share of the land devised. Spratt v. Lawson, 176 Mo. 175, 182. (8) The intention of the testator must be gathered from all the words and four corners of the will. The sole purpose of the power given in subdivision three was to provide funds for the legacies mentioned and by agreement all of these legacies were paid during the administration and distributive receipts filed in 1918. Cox v. Jones, 229 Mo. 53. (9) The purpose of the power of sale under subdivision three having been fulfilled the next and subsequent subdivision controls. See 40 Cyc. 1417. (10) Where the parties take and hold legal title as tenants in common by equitable reconversion under the will of the testator, the provision in the will providing for sale and distribution is not held to be a bar to partition. Nall v. Nall, supra; Turner v. Hine et al., supra. (11) The court had jurisdiction of the subject-matter and of all the parties having an interest in the real estate sought to be partitioned. No parties were acting in representative capacities at the time the suit was filed. The executors de bonis non cum testimento annexo did see fit to enter their appearance in the case. The court should have decreed partition. Sec. 1995, R.S. 1919; Sec. 200, R.S. 1919; Llewellyn v. Llewellyn, supra; Nall v. Nall, supra.

J. Grant Frye for respondents.

NIPPER, J.

This is an action for the partition of real estate. The parties are the heirs and devisees of George Kaufmann, deceased.

The petition alleges that the plaintiffs and defendants are the owners as tenants in common of the real estate described therein, and that each is seized of a designated fractional part, and that the premises cannot be partitioned in kind without great prejudice to the owners thereof. The petition asks that the land be sold and the proceeds divided among the parties according to their respective interests.

The answer admits that the parties to the cause are seized of said real estate as tenants in common for the fractional amounts alleged by plaintiffs, but say that each is seized of a bare legal title held in trust for the purpose of the testator's will.

The evidence discloses that in January, 1917, George Kaufmann died seized of certain real estate in Cape Girardeau County, consisting of a house and lot in the City of Jackson: that it could not be partitioned in kind; that at the time of his death, the heirs of George Kaufmann were his widow, Emilie A. Kaufmann, Louis R. Kaufmann, Otto H.F. Kaufmann, Albert G.H.J. Kaufmann, Matilda Petzoldt, Lillian Rudert, Flora Rudert Brinkopf, Otto Rudert, and Edwin Rudert; that the other defendants were the husbands or wives of the several heirs. The widow died in March, 1925. George Kaufmann left a will, which was admitted to probate on the 10th of January, 1917, the pertinent parts of which are as follows:

"Second: I give and bequeath to my beloved wife, Emilie A. Kaufmann, all of my real and personal property and all of the rent and profits she may derive therefrom during her natural life; and at her death I direct that all of her just debts and funeral expenses shall be paid.

"Third: As soon as convenient after the death of my wife I direct that all real and personal property shall be sold at public sale and the proceeds thereof shall be disposed of in the following manner:

"(a) The sum of six hundred dollars to the children of my deceased daughter, Emma M. Rudert.

"(b) The sum of one dollar to my son, Louis R. Kaufmann, as I have made him advancements.

"(c) The sum of six hundred dollars to my daughter, Matilda F. Petzoldt.

"(d) The sum of six hundred dollars to my son, Albert G.J.H. Kaufmann.

"(e) The sum of one dollar to my son, Otto H.F. Kaufmann, as I have made him advancements.

"Fourth: If after the payments of the debts and bequests herein provided for there be any estate left, then I direct that the residue be equally divided between all of my children or their heirs.

"Fifth: I hereby nominate and appoint my sons, Albert G.H.J. Kaufmann and Otto H.F. Kaufmann, as executors of this my last will and testament."

The executors appointed under the will qualified, and administered on the estate, and on the 13th of February, 1918, made final settlement, and on August 12th filed their final receipts, including...