
    Boettcher v. Boettcher et al.
    (Decided February 19, 1934.)
    
      
      Mr. Andrew O. Haefner and Mr. Wm. M. Fridman, for plaintiff.
    
      Mr. Harry Wernlte and Mr. Alfred Pfau, for defendants.
   Hamilton, P. J.

This case is here on appeal and grows out of the right of the plaintiff, William Horace Boettcher, to have partition of the property described in the petition.

Plaintiff alleges in his petition that Katherine Boettcher was seized during her lifetime of an undivided one-half of the described property; that she died testate, her estate was administered, and her will recorded; thát by her last will she bequeathed to her husband Edward Boettcher the income from her real estate during his natural life and devised the remainder of her estate to William Boettcher and Elsie Parker, share and share alike; that the husband elected to take under the will. The plaintiff further alleges that he, together with the defendant Elsie Parker, and Edward Boettcher, are tenants in common in the premises, which premises are subject to the income therefrom during the natural life of Edward Boettcher; that one-fourth of the balance belongs to Elsie Parker, one-fourth to William Boettcher, and one-half to Edward Boettcher.

Plaintiff prays for a partition of the real estate.

To this petition the defendant Edward Boettcher demurred, which demurrer the trial court overruled, and Edward Boettcher not desiring to plead further a decree granting partition was entered by the trial court. Prom that decree, Edward Boettcher appeals to this court.

The question for determination is whether or not under the law, the plaintiff, William Boettcher, is entitled to have partition.

The construction of the petition is that Edward Boettcher was the owner of one-half of the property described in tbe petition, and that his wife, who was the owner of the other half, devised the same, the income to Edward Boettcher, the husband, during his natural life, and the remainder to the plaintiff and the defendant Elsie Parker.

Two questions are presented: First, Is the devise of the income from the real estate to the husband during his natural life equivalent to a devise of the life estate in the realty? Second, Does the life estate covering the whole of the property devised prevent partition?

We are of opinion that the law is well settled that a devise of the income from real estate during life is in effect a devise of a life estate in the realty. This in effect is the holding in the case of Isherwood v. Isherwood, 16 C. C., 279, 8 C. D., 409, and cases therein cited. This rule is also pronounced in 28 Ruling Case Law, 239, and eases there cited, and in 40 Cyc., 1536. We know of no holding to the contrary.

The next question is, does the life estate prevent partition? This question is settled by the Supreme Court of Ohio in the case of Rawson v. Brown, 104 Ohio St., 537, 136 N. E., 209. At page 540 of the opinion, the court held:

“It is the settled law of this state that where there is an outstanding estate for life vested in a third person in the whole of the premises of which partition is sought, the remaindermen cannot have partition. Tabler v. Wiseman, 2 Ohio St., 207, and Eberle v. Gaier, Jr., 89 Ohio St., 118.”

This pronouncement of the Ohio rule is reiterated in the case of Embleton v. McMechen, 110 Ohio St., 18, 143 N. E., 177, 34 A. L. R., 689. At page 26 of the opinion the court held:

“However, if it be urged that the plaintiffs obtained an estate for life in the forfeited premises, with the remainder in Embleton and Slater, partition would not lie against the remaindermen since the life tenants and remaindermen have no unity of possession and are not tenants in common within the terms of Section 12026, General Code, which compels tenants in common and coparceners to suffer partition. That the remainderman cannot have partition, where a life estate intervenes, has been decided in the following cases: Tabler v. Wiseman, 2 Ohio St., 207, and Eberle v. Gaier, Jr., 89 Ohio St., 118, 105 N. E., 282.”

It is suggested, and the trial court so held, that Section 12042, General Code, is authority for partitioning the real estate described in the petition. Section 12042 has to do only with dower in an estate which is subject to a life estate, and authority is there worked out for realizing the dower interest, notwithstanding the life estate. This section has nothing to do with partition. The right to partition is limited to Section 12026, General Code.

Our conclusion is that the life estate is a bar to the partition of this estate. The demurrer to the petition is therefore sustained, and the petition dismissed, at the costs of the plaintiff.

Demurrer sustained and petition dismissed.

Cushing and Ross, JJ., concur.  