Reinders v. Koppelmann

• Decision Date: 31 October 1878
• Parties: REINDERS v. KOPPELMANN et al., Appellants.
• Court: Missouri Supreme Court

68 Mo. 482

REINDERS

v.KOPPELMANN et al., Appellants.

Supreme Court of Missouri.

October Term, 1878.

Appeal from St. Louis Circuit Court.

This was a suit for the partition of certain real estate in the city of St. Louis. The petition showed that the land had belonged to one John H. Koppelmann, who had died leaving a widow, Anna, but no children of his own; that in his life-time he had adopted a child named Johanna, the daughter of Robert Jaeschke and Eliza, his wife; that at his death, Koppelmann had left the will which is set out in the opinion of the court, and which was duly probated; that Johanna died, before the commencement of the suit, intestate, unmarried and without issue; that her father, Jaeschke and his three sons survived her and were then living; that plaintiff, Reinders, had intermarried with the widow Koppelmann, and by certain conveyances set out in the petition had acquired all her interest in the land; that he had also acquired all the interest of Robert Jaeschke; that Mrs. Reinders (late Koppelmann) had never had any children of her own, and that she was still living. Certain persons were named as heirs at law of the testator, and certain others as the “ostensible heirs” of Mrs. Reinders, and these persons, together with the three brothers of Johanna, deceased, were made defendants.

The defendants demurred to the petition, for that it appeared that as to one-half of the fee of the lands described, there was a contingent remainder in favor of the persons who, upon the decease of the tenant for life, (Mrs. Reinders,) would be her lawful heirs; that, therefore, for the want of parties to make a present decree of partition and sale effectual and binding upon these heirs when they came into existence, there could be no partition and sale then.

The circuit court, at special term, sustained this demurrer, and final judgment being entered for the defendants, plaintiff appealed to the general term, where the judgment was reversed. Defendants then appealed to this court.

Hitchcock, Lubke & Player for appellants.

Under section 1 of the partition act, (Wag. Stat, p. 966,) there can be no partition of this property until the heirs of Mrs. Reinders, the tenant for life, are known, and they cannot be known until her death. The law contemplates a partition only where all the parties who have interests are in esse, and they must be either “joint tenants, tenants in common or co-partners by courtesy or in dower, in fee for life or for years.” In the case at bar this one-half of one-half of the fee of this property is at present vested in the heirs at law of the testator, John H. Koppelmann, but may at any moment vest in the persons who, at the death of the widow, (now wife of respondent,) will be her heirs.

Again, to make a partition, or a sale in partition effectual, the court must have before it all of the parties and all of the property. How can the court have all the property before it if any of the interests are not represented for the want of parties not yet in esse? These absent parties cannot be bound by the decree. “Sale in partition imports no warranty of title. The deed simply conveys the interest of the parties to the proceedings.” Cashion v. Faina 47 Mo. 133; Matlock v. Bigbee, 34 Mo. 354; Schwartz v. Dryden, 25 Mo. 572; Owsley v. Smith, 14 Mo. 153.

2. Section 5 of the partition act, (Wag. Stat., p. 967,) in so far as it attempts to bind these persons not yet in esse by a decree in partition, is void under the constitution of this State, section 30 of the bills of rights, which reads as follows: “That no person shall be deprived of life, liberty or property, without due process of law.” Under this section of the statute, and the cases cited by counsel for respondent, it is proposed to sell this property in partition without giving these unknown parties a voice in the matter; clearly, this is taking their property without due process against them. The cases cited for respondent do not pass upon any such constitutional provision, and, therefore, are no authority here.

3. That there is a contingent remainder in favor of the heirs of Mrs. Reinders, formerly Koppelmann, is determined by the question, did she take a life estate in this realty? It is not necessary to inquire now whether she took an absolute estate in the personalty or not. That she took only a life estate in the realty is clear from the express language of the will. There is not even an express power of disposition beyond that. The words “then left” cannot be held to imply a power of disposal beyond the payment of debts, and the support and maintenance of the tenant for life. The perishable nature of some of the personalty also gives a meaning to the words “then left.” Gregory v. Cowgill, 19 Mo. 415, Carr v. Dings, 58 Mo. 400; Rubey v. Barnett, 12 Mo. 1; Brant v. Virginia C. & I. Co., 93 U. S. 326.

4. Our statute of adoption (Wag. Stat. p. 256), gives the right of inheritance to the child, but does not give the right of inheritance from the child to the adopted parent. The Statute of Descents (Sec. 1, p. 529, Wag. Stat.) provides, that “when any person having title to any real estate * * of inheritance shall die intestate as to such estate, it shall descend * * if there be no children, or their descendants, of the person so dying intestate to his or her father, mother, brothers or sisters.” It does not say adopted father or mother. Again: the Statute of Descents makes no distinction as to how the person so deceased acquired the property. If he or she have an estate of inheritance--no matter how acquired--and die intestate, such estate shall pass to the persons named above. Any argument that because this vested estate in Johanna Jaeschke came from her adopted father it should go to her adopted mother, exclusive of the persons named in the statute, has no force, because there is no distinction of property in the statute of descents. Further, the statute of adoptions in terms confines its operation to the persons “executing the deed of adoption.” The petition does not show whether Mrs. Reinders signed the articles. It is certain that the minor brothers of Johanna did not sign it. They are, therefore, not affected by it, and in no event can they be deprived of their right to inherit equal shares with the adopted mother of Johanna, if it may be held (which we utterly deny) that Mrs. Reinders can take a share as ““mother” under the statute of descents.

A. J. P. Garesche for respondents.

1. The demurrer was properly overruled, even it children should be born of plaintiff's wife; because though not now in esse they would be barred by the decree. Freeman on Judg., § 306; Calvert on Parties, 15 vol. Law Lib., p. 31, § 51-52; Finch v. Finch, 1 Vesey Jr., 534; Wills v. Slade, 6 Vesey Ch. 498; Mead v. Mitchell, 17 N. Y., 210; Academy of Visitation v. Clemens, 50 Mo., 171.

2. That partition can be made, though some of the interests are contingent or in remainder or reversion; Wag. Stat. p. 966, § 1; Gaskill v. Gaskill, 6 Simons 186; Scoville v. Hilliard, 48 Ills. 453; Scoville v. Hilliard, 52 Ills. 449; Baylor's Lessee v. Dejarnette, 13 Grattan 166. By section 5, partition act, if the interest of any one “be unknown to petitioner, or be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be contingent, so that such parties cannot be named,” the same shall be so stated in the petition. This provision clearly contemplates that this uncertainty, either because parties are unknown, or their interests contingent, shall not defeat the right of partition. It expressly authorizes the prosecution of the partition; and this becomes the more clear by reference to section 40, which directs the investment of the shares of the parties unknown. It is, then, too clear to admit of a question that even if the will contemplates that those who shall be “heirs” of the wife at the time of her death shall take, that would not defeat the prosecution of the suit. The law contemplates no follies. If, therefore, it would be the children of Mrs. Reinders, should she have any, the petitioner complies with the statute in stating the fact, and no publication is necessary to bring them in to make the decree valid. For publication is to bring in parties in esse, to enable interested parties, not served, to come in and to defend their interests. This is the end and aim of a publication; and publication is useless, and it is a farce to notify parties who are stated in the petition not to be in esse.

3. The will does not intend that if Mrs. Reinders should, in the future, have children they should take an interest. It does not say “children,” but “heirs;” and “heirs” must here be construed to mean ostensible heirs at the death of the testator. Cox v. Betlzhoover, 11 Mo. 146; Academy, &c. v. Clemens, 50 Mo. 171; Green v. Sutton, 50 Mo. 193; Cornelius v. Smith, 55 Mo. 533; Redfield on Wills, (3 Ed.) 57, § 4; Collier's Will, 40 Mo. 299; Jamison v. Hay, 46 Mo. 553; Flint v. Steadman 36 Vt 210; Huss v. Stephens,51 Pa. St. 288.

4. Mrs. Reinders, in respect to the property of the adopted father, was the heir of the adopted daughter Johanna. The will speaks of her as “ our adopted daughter,” and says that the bequest to her is “provided she will be a good girl, and demean herself such to her parent.” If intention should prevail, clearly the language would indicate that the change of name from Johanna Jaeschke to Johanna Koppelmann was the culmination of their paternal feelings in her regard. They cherished her, treated her and loved her as their own child, as much so as if she had sprung from their own loins. Very surely in making this bequest, the testator never contemplated that the brothers and sisters, still less the father, should share in his estate. See also Graham v. Bennett, 2 Cal. 506; Rives v. Sneed, 25 Ga. 613; Lunay v. Vantyne, 40 Vt. 504; Fusilier v. Masse, 4 La. 427; Vidal v. Commagere, 13 La. Ann. 519.

In...