Kierulff v. Harlan

Evans, J.

(1) Appellee urges upon our attention the objections filed in the lower court and which are referred to in the foregoing statement. From what is there indicated as to the state of the record, we do not think she is in any position to be heard on the same, and we do not pass upon questions thus raised.

(2) The case was heard upon a stipulation of facts. John Mussehnan died testate in 1887. He left a will which was duly admitted to probate. It contained the following clauses:

First. I give and bequeath to my beloved wife, Sarah Musselman, the full and exclusive control of all my personal and real property of which I may die seised, to have and use for herself and the support of my minor children, with full power and authority to sell any of the property, personal or real at any time that she may think best, with full power to sell and convey any of my real estate by good and sufficient deed in fee simple, when she may consider it best so to do for her comfort and the best interest of my children, and the use and control of all my property as before given with the power and authority vested, shall continue in my said wife so long as she remains my widow; and at the decease of my said wife, I direct that all the property, both real and personal, that may remain undisposed of and not consumed in the support of her 'and the children, shall be equally divided among my children that may be living at that time, with this exception, that I will and direct that my son Samuel Gr. Musselman, shall have 'of my estate the sum of five dollars only, my reason for so limiting his amount is on account of unkind treatment to me by him and. his wife.

*675 Secbnd. In case of the marriage of my said wife, then I direct that she take one-third of all my estate that may be and remain unconsumed at that time, and the remainder I direct to be divided among my children as hereinbefore directed.

He left surviving him his widow, Sarah, and ten children. Of these ten children two were by a former marriage, viz., Samuel G. and Elizabeth Harlan, and the other eight were the children of the later marriage by himself 'and Sarah. After the death of the testator, his widow occupied the premises under the provisions of the will for nineteen years and died in 1906, leaving-surviving her seven children by the testator. One son, William, died before her, leaving as his only heir at law the minor defendant Thomas.

x Wills* construction: life estate. I. It is the appellant’s contention that under the will of the testator the surviving widow took a fee. If so, then at her death the property would pass to her heirs, viz., her seven surviving children and the minor defendant, as sole heir of his deceased father. On the -other hand, it is contended by appellees that the widow took only a life estate under the will, and that at her death the property passed by the terms of the will to the eight children of the testator then living, excluding the son Samuel. These eight children included Elizabeth .Harlan, a daughter of the first marriage. It will be seen that the. rights of the seven living children, other than Elizabeth, remain the same whichever view is adopted. The controversy, therefore, is one solely with Elizabeth, on the one hand, and the grandson, Thomas, on the other. We reach the conclusion that the will in question gave the widow a life estate with power of sale, and nothing more. The case comes well within ,our former holdings in that respect. See In re Proctor, 95 Iowa, 172 ; Wenger v. Thompson, 128 Iowa, 750 ; Webb v. Webb; 130 Iowa, 457 ; Scott v. Scott, 132 Iowa, 35 ; *676 Baldwin v. Morford, 117 Iowa, 72 ; Podaril v. Clark, 118 Iowa, 264 ; Spaan v. Anderson, 115 Iowa, 121 ; Archer v. Barnes, 149 Iowa, 658 .

We think, also, that the remainder over after the death of the wife was clearly devised to such children of •the testator as should survive his widow, excluding Samuel. No title of any part of the property ever vested, therefore, in William, the father of appellant. Iimas v. Neidt, 101 Iowa, 348 ; Jordan v. Woodin, 93 Iowa, 453 .

Same. wfdow? by evidence. II. The next question is whether the surviving widow of testator was entitled to a distributive share of the property. If yea, then the appellant inherited one-eighth of such distributive share. It is contended by appellee that the provisions of the will are inconsistent with dower, and that therefore the widow could not take both. This question is close, and we find no occasion to pass upon it for the purpose of this case. We may assume the correctness of appellees’ contention at this point. Provisions in a will inconsistent with dower are not sufficient .of themselves to bar the widow’s right. It still remains with her to elect whether she will accept such provisions. At the time of the probate of the will, the method of her election was prescribed by section 2452 of the Code of 1873. Since 1897 such method has been prescribed by section 3376 of the present Code. It does not appear in this case that any election was ever made by the widow, nor does it appear that any notice was ever served upon her. There was therefore no election on her part, within the meaning of either of the above sections. The appellee pleaded an estoppel, but no facts appear in the agreed statement which constitute an estoppel. It does not'even appear that the widow knew the provisions of the will. We see no escape from the conclusion that nothing appears in this record which can constitute a bar to the right of the surviving widow to her distributive share. Byerly. v. Sherman, 126 Iowa, *677 447 ; Bailey v. Hughes, 115 Iowa, 304 . The result of this conclusion is that the appellant is entitled to one-eighth of one-third of the property in question, and the appellee, Elizabeth, is entitled to one-eighth of two-thirds thereof.

III. It appears from the record that the property was sold in pursuance of the former decree at referee sale. Appellant does not claim the right to interfere with ■ the title conveyed by such sale. It is agreed that Elizabeth Harlan received the one-eighth share of all the proceeds. The appellant is entitled to recover from her the one-third of such proceeds. To this extent the decree entered below will be modified, and the case will be remanded for further action of the trial court in harmony herewith.

Modified and remanded.