Facts
The appellant A. and the respondent B. were the common children of the married couple C. and D. After the death of D. and E., the heirs agreed on a partial partition of the inheritance in 1981. The unallocated remainder of the estates included several properties, a vacation home, and shares in a company. As the heirs could not agree on the partition of the remaining estate, A. initiated partition proceedings in 1999.
By judgment of December 14, 2010, the District Court of Plessur determined the scope of the estates and set the shares of the inheritance as follows: A. and B. each 65/192, the surviving spouse C. 62/192. The Cantonal Court of Graubünden, in upholding the appeal by B., ordered the physical division of the estates and directly assigned the inheritance assets to the heirs.
Considerations
The Federal Supreme Court upholds the appeal and remands the case to the lower instance for a new assessment. The partition court is bound by the statutory provisions on the formation of lots as well as on the allocation and sale of individual assets. It is not authorized to directly assign lots or individual assets to one of the heirs at its own discretion, if the heirs do not agree on this and there are no testamentary partition instructions.
The paramount principle of partition law is the equality of claims of the heirs. The partition court must…