Bunting v. Richardson

Per Curiam.

Plaintiffs brought this action seeking partition of certain real estate described as the southwest quarter of section 9, township 10, range 6, situated in Lancaster county, Nebraska, Defendants Anne C. Bunting and James M. Bunting, represented by Paul F. Good, guardian ad litem, are the children of plaintiff Archer Maury Bunting. Defendants William M. Richardson, Mary A. Funkhauser, A. Clark Richardson, and Mildred T. Richardson are the children of plaintiff Waneta Bunting Richardson. Defendant Mildred T. Richardson is represented by Otto K. Perrin, guardian ad litem.

The controversy grows out of the interpretation of the following paragraph in the will of Anna M. Bunting, deceased :

“II. I give, devise and bequeath unto my husband, William M. Bunting, the use of all my real estate and personal property, except such as I shall expressly dispose of, hereinafter during his natural lifetime, if he shall survive me.

“After his death, if he shall surviye me, all said estate, excepting such as I do hereinafter dispose of shall become the property of my daughter, Waneta Bunting Richardson, and my son, Archer Maury Bunting, and their children, to be theirs forever.

“Said Waneta B. Richardson and Archer M. Bunting to receive the equal one-half share of my estate with exceptions, as herein before noted.”

Testatrix’ husband predeceased her.

This appeal is presented upon a case stated, arid the respective contentions of the parties are quoted therefrom, together with the conclusion of the trial court:

“That plaintiffs contend that they aré the sole residuary legatees and devisees under said will and the sole owners in fee simple as tenants in common of said estate, including the premises described in the petition. That Paul F. Good, guardian acl litem for the minor defendants Anne C. Bunting and James M. Bunting, contends that plaintiffs take but a life estate, and that the children of plaintiffs take the remainder per stirpes, in fee, and therefore that said minor defendants represented by him take each an undivided one-fourth of said estate in fee simple, subject only to the life estate of the plaintiffs.

“That Otto K. Perrin, guardian ad litem for the minor defendant, Mildred T. Richardson, contends that by the terms of said will the plaintiffs and their children take said estate in fee simple as tenants in common, and that therefore said minor defendant, Mildred T. Richardson, is the present owner in fee simple of an undivided one-eighth of said estate.

“That the foregoing contentions arise by reason of section II of the will above set forth.

“That on the issues so joined, the court found, as to title, generally in favor of the plaintiffs and that they are the sole owners in fee simple, as tenants in common of said estate including the premises described in the petition; to which said guardians ad litem duly excepted.

“That by agreement of the parties the question as to partition shall be suspended, and that this appeal be taken on the question of title' only and presented as a case stated, as provided by paragraph c of rule 9 of the supreme court of Nebraska.” ’

We have carefully considered the record arid find the same to be free from prejudicial error. The judgment of the district court that plaintiffs are the sole owners in fee simple, as tenants in common of the estate, is right and it is therefore

Affirmed.