Krueger v. Krueger , 1 Ohio Law. Abs. 886 ( 1923 )

LEVINE, J.

Carl Krueger, having eight living children, devised and bequeathed all his property to his wife, Lena Krueger. A year later a ninth child, Pearl Krueger, was born. Carl Krueger then died and his will was probated. Pearl Krueger brought this suit for a partition of one of the parcels of realty so devised, alleging that she was a tenant in common entitled to one-ninth interest in the premises described. A demurrer by Lena Krueger was sustained by the Common Pleas. Plaintiff birings error proceedings to this court. Held:

Plaintiff’s rights are based on 1064 and 1064-a GC. The latter section provides that such after-born child shall take by contribution from the devisees and legatees. It was because of this that the lower court held that partition was not the proper remedy. That provision of the statute, however, is not exclusive. Plaintiff may, if she chooses, resort to partition. 25 OCC. 185, 2 CC. NS. 71, 66 OS. 233, 164 NE. 120. Case remanded with instructions that demurrer shall be overruled.