Ostmann v. Ostmann et al.

• Decision Date: 02 March 1943
• Docket Number: No. 26302.,26302.
• Citation: 169 S.W.2d 81
• Parties: HENRY OSTMANN, APPELLANT, v. WILLIAM OSTMANN, MINNA OSTMANN KATIE OSTMANN, FREDERICK OSTMANN, LOUIS OSTMANN, IDA SCHROEDER, LYDIA OSTMANN, EDWIN OSTMANN, WILFRED OSTMANN, HERBERT OSTMANN, LUCILLE OSTMANN, ARTHUR OSTMANN, RALPH OSTMANN, HAROLD OSTMANN, AND ELMER OSTMANN, RESPONDENTS.
• Court: Missouri Court of Appeals

169 S.W.2d 81

HENRY OSTMANN, APPELLANT, v. WILLIAM OSTMANN, MINNA OSTMANN KATIE OSTMANN, FREDERICK OSTMANN, LOUIS OSTMANN, IDA SCHROEDER, LYDIA OSTMANN, EDWIN OSTMANN, WILFRED OSTMANN, HERBERT OSTMANN, LUCILLE OSTMANN, ARTHUR OSTMANN, RALPH OSTMANN, HAROLD OSTMANN, AND ELMER OSTMANN, RESPONDENTS.

No. 26302.

St. Louis Court of Appeals, Missouri.

Opinion filed March 2, 1943.

Motion of respondents Frederick Ostmann and Louis Ostmann for rehearing overruled March 19, 1943.

Petition for writ of certiorari denied by the Supreme Court May 4, 1943.

Appeal from the Circuit Court of St. Charles County. — Hon. Edgar B. Woolfolk, Judge.

REVERSED AND REMANDED.

Wm. Wayne, Jr. for appellant.

(1) The provision in the will of Henry Ostmann "that under no circumstances shall any of my land be partitioned, sold or conveyed within a period of ten years after my death" must be given that meaning which the testator had in mind at the time he made his will. Legg et al. v. Wagner et al., 155 S.W. (2d) 146, 147; Kingston v. St. Louis Union Trust Co., 154 S.W. (2d) 39, 41; Vurrier v. Jones, 92 S.W. (2d) 885. (2) (a) The word "year" as used by Henry Ostmann in his will meant to him a calendar year and a calendar year is 365 days, and in computing time by the calendar year, days are not counted, but the calendar is examined and the day numerically corresponding to that day in the following year is ascertained and the calendar year expires on that day less one. Sec. 655, R.S. of Mo. 1939; 62 C.J., p. 967, sec. 14; Bell v. Mackey, 3 S.E. (2d) 816, 191 S.C. 105; Erwin et al. v. Benton (Kentucky) 87 S.W. 291; Geneva Cooperage Co. v. Brown (Ky.), 98 S.W. 279; Union Trust and Savings Bank v. City of Sedalia (Mo.), 254 S.W. 28; Hoffman v. U.S., 52 Fed. (2d) 269; Irving v. Irving, 209 Ill. App. 318. (b) When Henry Ostmann provided in his will that his land should not be partitioned for a period of ten years after his death it was his intention that partition of his land should be suspended for ten calendar years, and that in computing such period of time the date of his death should be included and consequently, since he died on January 13, 1930, that period of suspension would end on January 12, 1940. Taylor v. Brown, 147 U.S. 640; Erwin et al. v. Benton (Ky.), 87 S.W. 291; In Bardol's Will, 4 N.Y. Supplement (2d) 795; Irving v. Irving, 209 Ill. App. 318; Geneva Cooperage Co. v. Brown (Ky.), 98 S.W. 279; Union Trust and Savings Bank v. City of Sedalia (Mo.), 254 S.W. 28; Seaman et al. v. Poorman et al., 272 Ill. App. 264. (3) When Henry Ostmann died on January 13, 1930, an undivided one-eighth (1/8) of his land vested immediately in the plaintiff and the plaintiff could have instituted a partition suit on that date, except for the period of suspension provided for in the will, even though the will was not probated until some days later. Upon the probate of the will the will related back and took effect as of the time of the testator's death. Jones v. Nichols, 280 Mo. 653, 665; Bishop v. Broyles, 324 Mo. 69, 228 S.W. (2d) 790; Stolle v. Stolle, 66 S.W. (2d) 912; Humphreys v. Willing, 341 Mo. 1198; 111 S.W. (2d) 123. (4) Plaintiff became vested with an undivided one-eighth(1/8) interest in the lands of the testator on January 13, 1930, and the period of prohibition against partition also took effect on that date; the interest of the plaintiff and the prohibition against partition took effect simultaneously upon the death of the testator, and, therefore the date of the testator's death should be included in computing the ten-year period of suspension for partition provided for in the testator's will. Taylor v. Brown, 147 U.S. 640; Landham v. McKeel, 224 U.S. 582; Scaman et al. v. Poorman et al., 272 Ill. App. 264. (5) The statutory provision for the construction of statutes, which provides, that the time within which an act is to be done, shall be computed by excluding the first day and including the last day, does not apply in this case, because we are not dealing with the construction of a statute and further, we are not dealing with an act to be performed, but with an act prohibited. And the rule for computing time under a statute providing for an act to be done is not applied where an act is suspended or prohibited, and in computing time within which an act is suspended or prohibited, the first day is not excluded. Cases cited under (b) of Point (2). (6) The language of the will of the testator "that under no circumstances shall any of my land be partitioned within a period of ten years after my death" deals with an event — the death of the testator — and not with a day, therefore, immediately after such event — his death — the period of suspension began and the day of the event — the death — must be included in the computation of the ten-year period. Cases cited under (b) of Point (2). (7) Where the computation of time is not from a certain date but from a certain event, then the day of the event must be included in the computation. Kennedy v. Burrier, 36 Mo. 128; North Shore Material Co. v. Blodgett (Wis.), 250 N.W. 841; Brown v. Oneida Knitting Mills, Inc. (Wis.), 277 N.W. 653; Ratcliffe v. Louisiana Industrial Life Ins. Co. (La.), 169 So. 572; Birdsall v. Lewis, Sheriff, 281 N.Y.S. 846. And in computing the period of time in question, the intention of the testator controls over any statutory rule for the construction of statutes. American National Bank v. Service Life Insurance Co., 120 Fed. (2d) 579.

B.H. Dyer for respondents Frederick Ostmann and Louis Ostmann.

(1) "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 testator, expressed in any such will." Sec. 1721, Statutes of 1939; Crossan v. Crossan, 303 Mo. 572, 262 S.W. 701; Dennig v. Mispagel (Mo.), 260 S.W. 72; Gibson v. Gibson, 280 Mo. 519, 219 S.W. 561. (2) "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." Sec. 568, Statutes of 1939. (3) No extraneous evidence is allowed to explain, alter or contradict the plain and unambiguous language of a will. Brown v. Tuschoff, 235 Mo. 449; Fidelity Nat. Bank & Trust Co. v. Hovey, 319 Mo. 192, 5 S.W. (2d) 437, Methodist Episcopal Church v. Thomas, 145 S.W. (2d) 157. Crowson v. Crowson, 323 Mo. 633, 19 S.W. (2d) 634; Burrier v. Jones, 338 Mo. 679, 92 S.W. 885. (4) When a period of time is to be computed, the rule of computation is to exclude the first day or terminus a quo, and to include the last day or terminus ad quem. Sec. 655, Subdivision 4, Statutes of 1939; Kimm v. Osgood's Administrator, 19 Mo. 60; Hahn v. Dierkes, 37 Mo. 574; Reynolds v. M.K. & T. Ry. Co., 64 Mo. 70; Beaudean v. The City of Cape Girardeau, 71 Mo. 392; Rogers v. Wilson, 220 Mo. 213; Thompson v. Farmer's Exchange Bank, 333 Mo. 437, 62 S.W. (2d) 803; Parsons v. Egyptian Levee Co., 73 Mo. App. 458, 462; Malin v. Netherlands Ins. Co., 203 Mo. App. 153; Old Bank of Stoutsville v. Curtiss, 214 Mo. App. 270, 260 S.W. 812; McKnight-Keaton Grocery Co. v. McFadden, 107 S.W. (2d) 176; Reibold v. McKerrow, 48 Ohio App. 115, 192 N.E. 535; Garrett v. State, 118 Neb. 373, 224 N.W. 860; State v. Elson, 77 Ohio State 489, 83 N.E. 904, 15 L.R.A. 686; Lanham v. McKeel, 244 U.S. 582, 37 Sup. Ct. Rep. 708; Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 Sup. Ct. Rep. 185. (5) In the computation of time, the statutory rule of excluding the first day and including the last day is not limited in its application to the construction of statutes. It is applied to private contracts and other dealings of individuals. Gray v. Worst, 129 Mo. 122; Kelley v. Independent Publ. Co. 45 Mont. 127, 122 Pac. 735; Phillips v. Commercial Credit Co., 3 S.E. (2d) 836; State v. Elson, 77 Ohio State 489, 83 N.E. 904, 15 L.R.A. 786; State v. Smith, 162 Iowa, 336, 144 N.W. 32, 49 L.R.A. (N.S.) 834; McGinn v. State, 46 Neb. 427, 65 N.W. 46, 50 A.L.R. 617, 30 L.R.A. 450. (6) Fractions of a day are not generally considered in the legal computation of time, and the day on which an act is done or an event occurs must be wholly included or excluded. A day is regarded as an indivisible point, so that an act done in the compass of it is no more referable to any one than to any other portion of it; but the act and the day are co-extensive, and therefore the act cannot be past until the day is past. 26 R.C.L. 735; Williams v. Williams, 325 Mo. 963, 30 S.W. (2d) 69; Kelley v. Independent Publ. Co., 45 Mont. 127, 122 Pac. 735, 38 L.R.A. (N.S.) 1160, Ann. Cas. 1913D 1063; Erwin et al. v. Benton (Ky.), 87 S.W. 291. (7) In the computation of a period of time from an act done, the day on which the act is done is to be excluded. Kimm v. Osgood's Administrator, 19 Mo. 60; Rogers v. Wilson, 220 Mo. 213; Thompson v. Farmer's Exchange Bank, 333 Mo. 437, 62 S.W. (2d) 803. (8) The rule for computing a period of time is the same whether the period to be computed is expressed in the measure of days, months, or years. The day from which the reckoning starts is excluded from the count and the last day included when the measure is expressed in years, just as the first day is excluded and the last included when the measure is expressed in days, weeks or months. Kimm v. Osgood's Administrator, 19 Mo. 60; Thompson v. Farmer's Exchange Bank, 333 Mo. 437, 62 S.W. (2d) 803; Old Bank of Stoutsville v. Curtis, 214 Mo. App. 270, 260 S.W. 812; Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 Sup. Ct. Rep. 185; Kelley v. Independent Publ. Co., 45 Mont. 127, 122 Pac. 735; Price v. Illinois Bell Telephone Co., 269 Ill. App. 581; Reibold v. McKerrow, 48 Ohio App. 115, 192 N.E. 535.

ANDERSON, J.

This suit, instituted in the Circuit Court of St. Charles County, on January 13, 1940, seeks the partition of approximately four hundred sixty-six acres of land.

The...