Schneider v. Koester

• Decision Date: 31 January 1874
• Citation: 54 Mo. 500
• Parties: MARGARETTA A. SCHNEIDER, et al., Plaintiffs in Error, v. M. KOESTER, Defendant in Error.
• Court: Missouri Supreme Court

54 Mo. 500

MARGARETTA A. SCHNEIDER, et al., Plaintiffs in Error,

v.M. KOESTER, Defendant in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Cole Circuit Court.

G. W. Miller, for Plaintiffs in Error.

Ewing & Smith, for Defendant in Error.

I. The plaintiffs cannot maintain this action. They are not a “child or children” within the meaning of the law (Wagn. Stat., 1365, § 9.)

NAPTON, Judge, delivered the opinion of the court.

This was a proceeding in the Circuit Court to set aside the will of B. J. Koester, on the ground that the plaintiff's husband, who was a son of said testator, was not named or provided for in said will. The facts alleged, and not denied, are, that Koester left a son surviving him, who married the plaintiff; but the son died, and the plaintiff afterwards married the co-plaintiff, Schneider. The defendant denied the right of plaintiffs to sue under the 9th section of the act concerning Wills, which provides, that “if any person make his last will and die, leaving a child or children, or descendants of such child or children (in case of their death), not named or provided for in such will, although born after the making of such will, or the death of the testator, every such testator, so far as shall regard any such child or children or their descendants not provided for, shall be deemed to die intestate; and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and per sonal, as if he had died intestate, and the same shall be assigned to them; and all the other heirs, devisees and legatees shall refund their proportional part.”

Section 10 provides, that if said child or children shall have received from the testator in his life-time, by way of advancement, an equal proportion of the testator's estate, they shall take nothing in virtue of the preceding section.

The defendant claimed, and so the court held, that as she was not a child, or a descendant of a child of the testator, she acquired no right under this 9th section. The defendant also set up, that the son had been advanced his full share of the testator's estate by the father in his life-time. There was no replication and no evidence, and the court gave judgment for defendant.

The construction placed upon the statute by the court is manifestly erroneous. Upon the death of the testator, the right and title of the son became a vested interest in the son, which upon his death passed to his representatives.

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