Reinders v. Koppelman

• Decision Date: 05 March 1888
• Citation: 7 S.W. 288,94 Mo. 338
• Parties: REINDERS v. KOPPELMAN et al.
• Court: Missouri Supreme Court

7 S.W. 288

94 Mo. 338

REINDERS v. KOPPELMAN et al.

Supreme Court of Missouri.

March 5, 1888.

WILLS — CONSTRUCTION — "NEAREST AND LAWFUL HEIRS."

A testator gave his wife a life-estate in all his property, remainder in fee, one-half to his adopted daughter, and the other half "to the nearest and lawful heirs of mine and that of my wife, share and share alike." At the time of the execution of the will and the death of the testator, he and his wife each had brothers and sisters living. The wife afterwards married and adopted a son of this last husband by a former wife, as her heir. Held, that such adopted heir was entitled to no interest under the will, but that the brothers and sisters of the testator's wife, or their representatives, are "the nearest and lawful heirs" within the meaning of the testator.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Action for a partition of real estate, instituted by August Reinders, the appellant, as guardian of Otto W. Reinders, against John G. Koppelman and others, respondents. All the parties claimed an interest in the land through the will of John H. Koppelman, deceased, the said Otto W. Reinders claiming as the adopted heir of Anna M. Reinders, the widow of the testator.

Boyle, Adams & McKeighan and C. E. Gibson, for appellant. Leo Rassieur and Dexter Tiffany, for respondents.

BRACE, J.

Appeal from a decree of the circuit court of the city of St. Louis, in a suit for partition of certain real estate, of which one John H. Koppleman died seized. The question for consideration arises upon the construction of the fourth item in the will of said Koppelman, dated May 7, 1869, the second, third, and fourth items of which are as follows: "Second. I hereby give and bequeath to my beloved wife, Anna Koppelman, all my estate, real, personal, and mixed, for and during her life-time. Third. The foregoing bequest is made under the express proviso that my said wife will be a mother indeed for our adopted daughter Johanna, six years old; that she will bring her up, — educate her according to her best means; also, that my said wife shall carry on and continue my business, in company with my co-partners but I will that no part of my real estate, still less the whole of it, be sold, or otherwise disposed of before the lapse of twenty-five years. And, should it appear hereafter that the business cannot be carried on with the present capital, the said business shall be reduced to such an extent as to bring it in conformity with said capital. Fourth. After the decease of my said wife, Anna Koppelman, the property then left shall be divided as follows: One-half shall be given to our adopted daughter, Johanna, provided she will be a good girl and demean herself as such towards her parents. And the other half shall go to the nearest and lawful heirs of mine and that of my said wife, share and share alike."

Koppelman, the testator, died in 1869. Afterwards, in the year 1874, his widow, the said Anna, married one August Reinders, father of the appellant, Otto W. Reinders, by a former wife. Koppelman never had any children by the said Anna, nor has she ever had any by Reinders, and her age precludes the possibility of her having any issue in the future. At the time of the execution of the will and the death of the testator, the said Koppelman and wife each had brothers and sisters living. On the 4th of January, 1882, the said Anna, in accordance with the provisions of Rev. St. 1879, c. 15, p. 96, adopted her husband's son, the said Otto W. Reinders, as her heir, who claims that he is the "nearest and lawful heir," of the said Anna, within the meaning of the fourth item of said will, and as such is entitled, if he survives the said Anna, to one-fourth interest in remainder of the proceeds of the real estate sold in this suit, being one-half of the one-half of the remainder that was, under the provisions of said fourth item of the will, to go to "the nearest and lawful heirs" of the testator and of his said wife, share and share alike. The respondents claim, and the court below so held, that the said Otto W. Reinders had no interest, contingent or otherwise, in said land or the proceeds of the sale thereof under the decree, but, on the contrary, that the brothers and sisters of the said Anna, or their legal representatives, are "the nearest and lawful heirs" of said Anna within the meaning of the testator in his said will. The appellant contends that the decision of this court in Reinders v. Koppelmann, 68 Mo. 482, in which this same will was before the court, is decisive of the question, and, in support of his contention, quotes the following extract from the opinion in that case: "The objection is that, as Mrs. Koppelman is still living, her heirs are not ascertainable, and not in existence, and their interests, should she yet have children, would be destroyed. The answer to this objection by the petitioner, is that by the word `heirs,' used in the will, was meant heir-apparent, or the heirs of Mrs. Koppelman in existence at the death of the testator; and there is no doubt that there are a number of cases in England, as well as this country, that allow this word to be so construed in wills, where the intent of the testator is manifest that he refers to such heir or heirs; but, in this case, the remainder is given on the death of Mrs. Koppelman, and where he...