Sikemeier v. Galvin

• Decision Date: 18 October 1894
• Citation: Sikemeier v. Galvin, 27 S.W. 551, 124 Mo. 367 (Mo. 1894)
• Parties: Sikemeier et al., Appellants, v. Galvin et al
• Court: Missouri Supreme Court

27 S.W. 551

124 Mo. 367

Sikemeier et al., Appellants, v. Galvin et al

Supreme Court of Missouri, First Division

October 18, 1894

Appeal from St. Louis City Circuit Court.

Reversed and remanded.

Mills & Flitcraft for appellants.

(1) It is a well settled rule of law that an estate in remainder, to parties who may come in esse, may be partitioned. Reinders v. Koppelmann, 68 Mo. 482; Wills v Slade, 6 Ves. Ch. 498; 1 Story on Equity Jurisprudence [13 Ed.], sec. 656a; Mead v. Mitchell, 17 N.Y. 210; Jenkens v. Fahey, 73 N.Y. 355; R. S. 1889, sec 7136. (2) An estate in remainder may be partitioned during the life of the life tenant. Reinders v. Koppelmann, 64 Mo. 482; Preston v. Brant, 96 Mo. 552; Gaskell v. Gaskell, 6 Sim. Ch. 643; Wills v Slade, 6 Ves. Ch. 498; Baring v. Nash, 1 Ves. & Bea. 550; 1 Story on Equity Jurisprudence [13 Ed.], sec. 656a; Jenkens v. Fahey, 73 N.Y. 355. (3) A decree in partition can be made, in an action brought by a life tenant, where the remainder is to persons not in esse, which will be binding upon the persons in remainder. 1 Story's Equity Jurisprudence [13 Ed.], sec. 656a; Jenkens v. Fahey, 73 N.Y. 355. (4) Partition can be maintained by a plaintiff who is tenant for life only. Gaskell v. Gaskell, 6 Sim. Ch. 643; Baring v. Nash, 1 Ves. & Bea. 550; 1 Story's Eq. Jur. [13 Ed.], sec. 656a, p. 665; 2 R. S. 1889, sec. 7132.

John P. Leahy for respondents.

(1) Partition can not be made contrary to the will. Cubbage v. Franklin, 62 Mo. 364; Williams v. Hassell, 74 N.C. 434; Spaulding v. Woodward, 53 N.H. 573. (2) Where one party owns the life estate and the other the reversion, neither is entitled to partition as against the other. Belew v. Jones, 56 Miss. 342.

Brace J. Barclay, J., not sitting.

OPINION

Brace, J.

Dennis Galvin, by his last will and testament, executed in January, 1886, devised all his real estate to his wife, Margaret, for life, and, subject to her life estate, among other devises, made the following: "To my daughter, Margaret Galvin, wife or Henry Sikemeier, for and during her natural life, I give, bequeath and devise a lot in same block number 149, fronting twenty-two feet, six inches, on the east side of Seventh street and running back eastwardly, like the two preceding lots, eighty-two feet in depth, to an alley four feet in width, and on which is erected the building number 804, South Seventh street, and upon her death is to pass to, and to be vested in her right heirs, whether lineal or collateral, as the same would be declared by the present laws of the said state of Missouri concerning descents and distribution;" and by the tenth item thereof provided that: "The different gifts, bequests and devises for life to my daughters may be sold and conveyed in fee simple absolute, by the concurrence in the deed, as parties, of the ostensible heirs and devisees to succeed her in the ownership of the property upon her death, but the proceeds are, with the same concurrence, that is, of the ostensible heirs or devisees, to be reinvested in the purchase of other realty in said city of St. Louis, or in the county of St. Louis, of said state of Missouri, or loaned out on good real estate security within the same territorial limits; but such reinvestment in realty and loans remains subject to the same trusts and conditions as the realty of the sale of which it is the proceeds."

This suit is brought by the said Margaret Sikemeier and her sister, Nellie Conway, plaintiffs, against her sister, Mary Elizabeth Galvin, and her brothers, John D. Galvin and Mathew J. Galvin, for partition of said lot.

It is alleged in the amended petition, that the widow of the testator is dead; that the said Margaret Sikemeier has no children; that the only living ostensible heirs of the said Margaret, in whom the fee to said lot could be vested at her death, are the said Nellie Conway, Mary Elizabeth Galvin John D. Galvin and Mathew J. Galvin, her brothers and sisters; that the improvements on said lot consist of a brick dwelling house, which is in a dilapidated condition, the rent from which is very small and insufficient to pay taxes, insurance and other expenses; and that partition thereof can not be made in kind. "Wherefore plaintiffs pray that said premises may be by the court ordered to be sold, and that the interest of the plaintiff, Margaret Sikemeier, may be ascertained and set apart and paid over to her, and that the court adjudicate the rights of the respective parties and apportion the remainder according to the respective rights of the parties entitled thereto, or that such remainder be turned into court to stand for and represent the interest of the heirs of the life tenant in said property, and the same be placed in trust by the court and kept for the heirs of the said Margaret Sikemeier, to be paid to them as they may be entitled upon the decease of the said Margaret Sikemeier, and for such other and further relief as to the court in equity and good conscious may seem meet and...