Parker v. Hayden

Wills: devise of life estate: dower: construction. The devise by a hüsband to his wife of a life estate in certain described real estate, with remainder to his daughter, will not preclude the widow from claiming dower in such property, in addition to the life estate, unless the devise, by express words or by the clear and manifest implication of the terms of the will, be made in lieu of dower.

Appeal from Cass District Court. — Hon. A. B. Thornell, Judge. The plaintiff and J. W. Winslow? in Ms lifetime, were each the owner of an undivided one half of lot number 5 in block number 28 in the city of Atlantic. J. W. Winslow died testate, and the following are provisions of his will: “In addition to the homestead, viz., lots 1, 2, 3 and 4, in block 24 in the city of Atlantic, Cass county, Iowa, deeded by me to my beloved wife, Charlotte, R. Wins-low, by deed bearing date the second day of January, 1886, and recorded in the Recorder’s office of Cass county, Iowa, on the twenty-third day of May, 1887, I give and devise to my said beloved wife, Charlotte R. Winslow, all the income derived from the business property located on Chesnut street, known and described as follows, to-wit: ‘The undivided half of lot number 5, block number 28, in the city of Atlantic, Cass county, and the state of Iowa,’ — after deducting all taxes and all necessary repairs and insurance, for and during the term of her natural life; and at the death of my said wife the said above-described property in fee I hereby give and devise to my daughter, Estella M. Hayden; and, if she be dead, to her children, if any there be; and, if she does not have any children at her death, I hereby give and devise the said above-described property to my beloved brother and sister, Greorge Winslow and Lucinda Lodwig, the same to be divided between them, share and share alike.” Then follows a devise to his wife of one thousand dollars life-insurance money, due at his death from the' Equitable Insurance Company of Iowa, and five thousand dollars insurance money,'due at his death from the Masonic Benevolent Association of Central Illinois; also family horse, harness, phaeton and road cart. Then a devise to Ms daughter of real estate, farm property of some two hundred and forty acres, and the undivided one half •of lot 6, block 28, of Atlantic, Cass county, Iowa, and two thousand dollars insurance money due at his death from Mutual Life Insurance Company of blew York. 'Then, after bequests are paid, the balance of his personal property be divided between his wife and daughter, share and share alike. This action on the part of the plaintiff is in partition, and asks that the lot or the proceeds thereof be divided, and that one half thereof be set apart to him. As to the plaintiff’s rights there is no controversy. The issue on this appeal is between the widow and daughter, Estella M. Hayden, By pleadings each presents a claim, under the will, to the testator’s share of the lot in question, — that of the widow being to a life estate under the will, and, in •addition, one third of the value as her distributive ■share under the statute; that of the daughter being to the entire half of the lot after the life estate therein. The issue is presented by a demurrer to the claim of the widow for a dower interest. The district court overruled the demurrer, and Estella M. Hayden appeals.