Facts
Josef Böbner-Koch, who passed away in 1924, was the owner of an agricultural homestead. His legal heirs, the surviving spouse and seven children, concluded an agreement on October 1, 1927, whereby the sons Josef and Alfred Böbner took over the homestead and the other siblings were compensated.
Josef and Alfred Böbner subsequently operated the homestead jointly. On August 7, 1961, Alfred Böbner passed away. His estate consisted of his share in the homestead. The land register listed Josef and Alfred Böbner as "joint owners as an estate community".
As the heir of Karolina Hofstetter-Böbner, who passed away on March 31, 1965, her son Franz Hofstetter demanded on May 20, 1965, the allocation of the homestead to him according to agricultural inheritance law. The courts rejected this request.
Considerations
The Federal Supreme Court confirmed the judgment of the Lucerne Cantonal Court. It stated that the brothers Josef and Alfred Böbner had operated the homestead not as an estate community, but as a simple partnership.
While it is generally permissible for individual heirs to continue the estate community after compensating the other heirs, the agreement of October 1, 1927, and the subsequent behavior of the brothers indicate that they had taken…