126 Wis. 191 | Wis. | 1905
Whatever limitations existed under old equity rules upon a suit for partition, such suit is maintainable in Wisconsin im the cases where expressly authorized by our statute. Sec. 3101, Stats. 1898, provides:
“All persons holding lands as joint tenants or tenants in common may have partition thereof by civil action in the manner provided in this chapter. Such action may be maintained by any person who has any estate in possession of the lands of which partition is sought, but not by any one who has only an estate therein in remainder or reversion.”
The complaint alleges that the plaintiffs are such tenants in common and have an estate in possession. It also denies that any persons other than the defendants, not including any administrator, have any estate or interest in the premises. It is difficult, therefore, to see any escape from the conclusion that they state a right under the statute to partition. Substantially the only contention to the contrary is based upon the fact appearing by the complaint that the plaintiffs’ title is by descent from Lorenzo Hinman, their grandfather, through his son Walter M. Hinman, plaintiffs’ father, now deceased, resident in Oklahoma. Apparently the defendants’ contention is that, until settlement of the grandfather’s estate, there can be no estate in possession in his heirs at law, because of the administrator’s right to possession under certain circumstances. Eeal estate descends to the heir immediately upon decease of its owner, and no intervention of court or administrator to take intermediate title, as in the case of personal property, is necessary. Marsh v. Waupaca Co. 38 Wis. 250. Our statute (sec. 3823, Stats. 1898) has given a very
The view taken in many jurisdictions, that an heir cannot maintain partition during the pendency of the settlement of his ancestor’s estate, for the reason that confusion and com
By the Court. — Order overruling demurrer is affirmed.