Leonard v. Lining

Day, J.

Moses Leonard died in 1878, leaving surviving him six children. Wilson Leonard, a son of Moses Leonard, died in 1852, leaving the defendant, his widow, and one daughter, and two sons, one of whom, Francis M. Leonard, died in 1864. From the statement it appears that both Wilson Leonard, the son, and Francis M. Leonard, the grandson, died before Moses Leonard, but that Francis M. Leonard was living at the time of the death of his own father, Wilson Leonard. The court allowed the defendant the share which would have gone to her son, Francis M. Leonard, if he had survived his grandfather. Section 2454 of the Code is as follows: “If one of his children be dead, the heirs of such child shall inherit his share in accordance with the rule herein prescribed, in the same manner as though such child had outlived his parents.”

i. estaterigRteofpareuts‘ In order to properly apply this section to the facts of this ease we must suppose Wilson Leonard to have outlived his father, Moses, and to have died subsequently to 1878. At that time Francis M. Leonard was dead, without issue. If Francis had left issue, a different question would be presented, as such issue might have become entitled to the share which would have fallen to their father if he had been living when Moses Leonard died. But sections 2455 and 2456 of the Code provide, in effect, that if the intestate leave no issue nor wife, his estate shall go to his *650 parents, if living, and if one of his parents be dead, to the survivor. Now, under the doctrine of Lash v. Lash, 57 Iowa, 88 , Francis M. Leonard never had any estate in this property. He died before the death of his grandfather, from whom the property is derived, and the property never vested in him. If the statute provided that if one of the children be dead without issue the share which would have gone to him, if living, should go to his parents, the parents would be placed upon the samé ground as to inheritance as the children. But the statute does not so provide. It simply provides that in the absence of issue the estate of a child shall go to the parents. No provision is made that the parents shall take unless the intestate leave an estate. Francis M. left no estate, and hence there was nothing which his mother, under the statute, could take from him. As Francis M. Leonard was dead without issue when his grandfather, Moses Leonard, died, the share which would have gone to Wilson Leonard if he had survived his father must be distributed just as if Francis M. had never liad any existence. The case of Moore v. Weaver, 53 Iowa, 11 , is not inconsistent with this view. In that case the intestate died seized of an estate in fact.

As the defendant has submitted no argument, the errors assigned on her behalf are regarded as waived, and her appeal as abandoned. Upon the plaintiff’s ajspeal the judgment is

Reversed.