Lilly v. Menke

• Decision Date: 22 December 1894
• Citation: 28 S.W. 643,126 Mo. 190
• Parties: Lilly et al., Trustees, v. Menke et al., Appellants
• Court: Missouri Supreme Court

28 S.W. 643

126 Mo. 190

Lilly et al., Trustees, v. Menke et al., Appellants

Supreme Court of Missouri

December 22, 1894

Appeal from Livingston Circuit Court. -- A. W. Mullins, Esq. Special Judge.

Reversed and remanded.

""Davis Loomis & Davis for appellants.

(1) The will of Ilett Tobbein gave a life estate in all his property to Catherine Tobbein, and on his death, one half to her heirs in fee, and one half to the Catholic church at Lexington. Catherine Tobbein renounced the will and took, under the statute, one half of the whole estate in fee. Her renunciation of the will could only affect the rights which she acquired under the will, and could not affect the rights which her heirs at law acquired thereunder; therefore she took one half of the original estate in lieu of the life estate given her by the will, which leaves the other half of the estate to be divided between her heirs at law and the Catholic church at Lexington, according to the terms of the will. Which, according to the construction given to the will by the lower court, and by the plaintiffs, the Catholic church at Lexington takes one half of the entire original estate of Ilett Tobbein, deceased, and the heirs at law of Catherine Tobbein take nothing, under the will of Ilett Tobbein. ""In re Cunningham's Estate, 20 A 714, 716; ""In re Rawlings' Estate, 47 N.W. 992, 993; 1 Redf. on Wills [3 Ed.], p. 429, note; ""Allen v. Hannum, 15 Kan. 470; 2 Jarman on Wills [5 Am. Ed.], p. 43, note; ""Carder v. Commissioners, 16 Ohio St. 354, 367; ""Logan v. Logan, 17 P. 99; ""Brown v. Hunt, 12 Heiskell (Tenn.), 404; ""Wood v. Wood, 1 Metc. (Ky), p. 512. (2) There can be no partition unless all parties whom the records show have an interest in the property sought to be partitioned, are made parties to the suit, and are brought into court by proper process. The heirs at law of Ilett Tobbein, deceased, who were made parties in the original petition of the plaintiffs, and the heirs at law of Catherine Tobbein, who are devisees under the will of Ilett Tobbein, deceased, and the devisees and legatees of Catherine Tobbein, deceased, are necessary parties to this suit. R. S. 1889, sec. 7135; ""Dameron v. Jameson, 71 Mo. 97; ""Estes v. Nell, 108 Mo. 172; Freeman on Cotenancy and Partition, sec. 463; ""Barney v. Baltimore, 6 Wallace, 284; ""Shields v. Barrow, 17 How. (U.S.) 130. (3) The plaintiffs seek to require Maria T. Menke, and the judgment and the decree of the lower court requires her, to bring into hotchpot and have it counted against her in the distribution of the estate of Ilett Tobbein, deceased, $ 10,278.28, which was never in fact received by her, nor alleged, nor proven, nor even claimed to have been received by her; was never in her possession, nor under her control, and from which she never derived one dollar benefit. R. S. 1889, sec. 4470; ""Turpin v. Turpin, 88 Mo. 337; 9 Am. and Eng. Encyclopedia of Law, p. 775; 1 Am. and Eng. Encyclopedia of Law, p. 216; ""Ray v. Loper, 65 Mo. 470; ""Nelson v. Wyan, 21 Mo. 352; ""Osgood v. Brook's heirs, 17 Mass. 356; ""Hall v. Davis, 3 Pick. 450; ""Grattan v. Grattan, 10 Ill. 167; ""Oyster v. Oyster, 1 S. & R. 422; 1 Am. and Eng. Encyclopedia of Law, p. 222, note 3. (4) It was error to charge the interest of Maria T. Menke in the land sought to be partitioned, with the rents, issues and products received by Charles Menke, or to render judgment against Maria T. Menke and Charles Menke personally for rents, issues and products of the land, because there is no allegation in the petition, nor any evidence whatever that either of the defendants, Charles Menke or Maria T. Menke, excluded or ousted the plaintiffs or any other person from the possession or enjoyment of the property sued for, or the rents, issues or products thereof, nor that they in any manner hindered or disturbed or interfered with the joint use or possession, by the plaintiffs, of the property. ""Ragan v. McCoy, 29 Mo. 356; ""Dodd v. Barry, 15 Mo.App. 595; Freeman on Cotenancy and Partition, secs. 275, 258; ""Poco v. Columbet, 12 Cal. 414; ""Goodenow v. Ewer, 16 Cal. 461; ""Bird v. Bird, 15 Fla. 425; ""Crane v. Wagoner, 27 Ind. 52; ""Scantlin v. Allison, 32 Kan. 376; ""Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh. (Ky.), 141; ""Bridgeford v. Barbour, 80 Ky. 529; ""Israel v. Israel, 30 Md. 120; ""Sargent v. Parsons, 12 Mass. 153; ""Shepard v. Richards, 2 Gray, 424; ""Woolever v. Knapp, 18 Barbour, 265; ""Dresser v. Dresser, 40 Barbour, 300. (5) This court has held by a long line of decisions, that it will review all material errors appearing upon the face of the record proper, although no exceptions were saved or motion for a new trial, or in arrest of judgment, was filed in the lower court. The record proper consists of the summons, pleadings, verdict, judgment and decree. ""Emmons v. Gordon, 24 S.W. 146; ""Childs v. Railroad, 23 S.W. 373; ""Burns v. Patrick, 27 Mo. 434; ""Bateson v. Clark, 37 Mo. 31; ""Jones v. Fuller, 38 Mo. 363; ""Miller v. Davis, 50 Mo. 572; ""Peltz v. Eichele, 62 Mo. 177; ""State v. Griffith, 63 Mo. 548; ""McIntire v. McIntire, 80 Mo. 471; ""State v. Scott, 104 Mo. 26; ""Smith v. Burrus, 106 Mo. 96; ""Ancell v. Cape Girardeau, 48 Mo. 80; ""Sweet v. Maupin, 65 Mo. 65; ""Bagby v. Emberson, 79 Mo. 139.

""Alexander Graves and ""Mansur & McLaughlin for respondents.

Appellants concede in their brief and argument that by the will the church was entitled to one half the property, but contend that by the widow's renunciation the interest of the church was altered to a one fourth instead of a one half. The renunciation of the widow could not thus operate for the following reasons: ""First. The fact that this executor by the will was to sell the property after expiration of widow's life estate and divide the proceeds, renders this a will of personalty. ""Hocker v. Gentry, 3 Metc. (Ky.), 473; ""Arnold v. Arnold, 9 B. Mon. 86; ""Peter v. Beverly, 10 Pet. 235; ""Gould v. Orphan Asylum, 46 Wis. 117; ""Taylor v. Benham, 16 Curtis, 387; 3 Wheat. 563; 5 Paige, 318; ""Bogert v. Hertell, 4 Hill, 495; ""Seymour v. Freer, 8 Wall, 214; 4 Kent [12 Ed.], 203, 206; 2 Cooley's Blackstone, pp. 168-169, 172; 2 Jarman on Wills [5 Am. Ed.], p.172. "And the general rule is that the conversion directed by this will is considered as taking place at the testator's death." Jarman on Wills, p. 179, note 3. And the executor became a trustee for that purpose. ""Taylor v. Benham, 5 How. 233; ""Wilson v. Wilson, 54 Mo. 213. ""Second. If the property is to be considered either realty or personalty, appellant's proposition can not be sustained. If realty, then the church's interest is that of a vested remainder. 4 Kent [12 Ed.], 203, 206; 2 Cooley's Blackstone, pp. 168, 169. And, therefore, the act of renunciation could not affect the interests of the church. ""Third. But even if the interest of the church be considered to be a contingent remainder in real estate, still the act of renunciation is immaterial, because this will, whereby the property is conveyed, is an executory devise. 2 Cooley's Blackstone, p. 172. ""Fourth. "The effect of election not to take under the will is, as to the widow, to supersede the will and leave the intestate law to govern. A conversion, therefore, which is to be made by direction of the will, does not take effect as to her." As to others taking remainders or other gifts under the will, her election to renounce the will leaves them unaffected except by accelerating estates limited after that rejected by her." 2 Jarman on Wills, p. 43; ""Brink v. Layton, 2 Redf. 79; ""Barnet v. Barnet, 1 Metc. (Ky.) 254; ""Hoover v. Landis, 76 Pa. St. 354; ""Armstrong v. Park, 9 Humph. 195; ""Brown v. Hunt, 12 Heisk. (Tenn.) 404; ""Wood v. Wood, 1 Metc. (Ky.) 512; ""Allen v. Hannun, 15 Kan. 625. All the parties who had any interest were before the court. Cotenancy is indispensable to render a party either proper or necessary. R. S. 1889, sec. 7132. It is not necessary that an incumbrancer be made a party; his rights are not affected. ""Low v. Holmes, 17 N.J.Eq. 150; 77 Pa. St. 151; 24 Ill. 307; 15 Iowa 361. The partition in this case was in chancery and not under the statute, and the court could, to do complete justice, take account of the mesne rents and profits in perception by one tenant in common to the exclusion of the other. Freeman on Cotenancy and Partition [2 Ed.], secs. 425, 512; Story's Eq. Jur., secs. 466, 655; ""Obert v. Obert, 2 Stockton, 98; ""Scantlin v. Allison, 32 Kan. 376; ""Leach v. Beattie, 33 Vt. 195; ""Bowles v. Bowles, 80 Ky. 529.

Gantt, P. J. Barclay, J. dissenting.

OPINION

In Banc.

Gantt P. J.

This is a proceeding in equity to obtain a partition of the estate of Ilett Tobbein, late of Caldwell county, Missouri, and is the culmination of the litigation to establish the last will of said Tobbein. Catholic Church v. Tobbein, 82 Mo. 418; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618.

On the sixteenth day of July, 1890, the plaintiffs filed a petition in the office of the circuit clerk of Caldwell county, Missouri, for the partition of the estate of Ilett Tobbein, deceased, among and between the devisees of said Ilett Tobbein, in accordance with the last will and testament of said Tobbein, which was set forth in hoec verba in the petition, and stated that the unincorporated Catholic church at Lexington was by said will the owner in fee of one half of said real estate and that the defendants, John Smith, Agnes Polking, William Polking, Maria T. Menke and Charles Menke, her husband, Upupt Mippin, Herman Bremmer, Margaret Bremmer, Joseph Tobbein, Elizabeth Swartz, John Swartz, Elizabeth Vieljans, and other nonresidents, nephews and nieces of Ilett Tobbein, deceased, and Bernard Henry Tobbein, and Mary Rabenberg and Stephen Rabenberg...