Mathews v. Glockel

• Decision Date: 17 July 1908
• Docket Number: 15,264
• Citation: 117 N.W. 404,82 Neb. 207
• Parties: FRED MATHEWS, APPELLEE, v. WILHELMINA GLOCKEL ET AL., APPELLANTS
• Court: Nebraska Supreme Court

117 N.W. 404

82 Neb. 207

FRED MATHEWS, APPELLEE, v. WILHELMINA GLOCKEL ET AL., APPELLANTS

No. 15,264

Supreme Court of Nebraska

July 17, 1908

APPEAL from the district court for Otoe county: PAUL JESSEN, JUDGE. Reversed with directions.

Judgment reversed and plaintiff's action dismissed.

John C Watson, for appellants.

W. W Wilson, contra.

CALKINS C. FAWCETT and ROOT, CC., concur.

OPINION

CALKINS, C.

This is an action by a husband ostensibly for the recovery of an estate by the curtesy in lands in which his dedeceased wife was seized of an undivided share. The defendant Wilhelmina Glockel was the widow of Johann G. Glockel, who died in 1901 intestate, leaving him surviving the said widow, a daughter, Rose Mathews, wife of the plaintiff, and four other children. At the time of his death he was the owner of a farm in Otoe county containing about 100 acres, upon which his widow, the defendant, continued to reside. In 1905 Rose Mathews filed a petition in the district court for Otoe county for partition of said property; but the summons in said action was returned not served at the direction of the plaintiff, and the said Rose Mathews, together with the four other heirs of Johann G. Glockel, on the 19th day of May, 1905, entered into a written agreement whereby they agreed to and with each other and with Wilhelmina Glockel, widow of the said Johann G. Glockel, that they would not during the lifetime of the said Wilhelmina Glockel partition, divide, nor ask for a partition or division of the lands of which the said Johann G. Glockel died seized. The said agreement was expressed to be in consideration of the love and affection of the children for their said mother; and it also appears that the mother paid Rose Mathews the sum of $ 100 either for the dismissal of said partition suit or for the signing of said agreement, or both. In August, 1905, the said Rose Mathews died without issue. This suit was brought by the plaintiff, her husband, to, in the language of the prayer of his petition, recover and hold a one-fifth interest in said premises for and during his natural life as tenant by the curtesy. There was a trial to the court, who found substantially the foregoing facts. The court further found as conclusions of law: (1) That the said agreement of Rose Mathews was binding upon the plaintiff; (2) that upon the death of the said Rose Mathews the plaintiff became vested in an estate by the curtesy in an undivided one-fifth interest in the land mentioned in the pleadings for and during his life, subject, however, to the homestead and dower right of the defendant Wilhelmina Glockel; and (3) that, by reason of the said agreement made by the said Rose Mathews, the said estate cannot be set off to the plaintiff during the lifetime of the said Wilhelmina Glockel. Upon this finding the district court decreed that the plaintiff have as tenant by the curtesy an undivided one-fifth of the real estate mentioned, subject to the homestead and dower right of the said Wilhelmina Glockel, and that the said estate be confirmed and perfected in him, but that the actual setting off of said estate or the partition or division of said land be and is postponed until after the death of the said Wilhelmina Glockel. From this decree the defendants appeal.

1. It is clear that Rose Mathews, but for the making of the agreement referred to, might have maintained partition; and it follows that her husband, upon her death without issue under the statute in force at that time, would have been entitled to the possession of her share as tenant by the curtesy, and might himself have maintained partition had she been entitled to do so. But, by the agreement referred to, Rose Mathews covenanted with her mother and her brothers and sisters that she would not during the lifetime of her mother partition or...