Bulfer v. Willigrod

33 N.W. 136, 71 Iowa 620

• Court: Supreme Court of Iowa
• Decided: June 9, 1887
• Status: Published

Opinion

Reed, J.

1. Will: bequest of all property to widow: election. The bequest to defendant is in the following words: “ I give and bequeath to my beloved wife, Caroline Kline, all my property, both real and personal and mixed, and oi every land, manner and nature, to use to her own use and benefit as she shall deem best for herself and our beloved daughter, Anna M. Kline, after paying 'my just debts and expenses of my last sickness and burial.” The questions arising on. the record are (1) whether the devise was defeated by the failure of defendant to file her election to take under the will; and, if not, (2) whether, under the will or the law, plaintiff took any interest in the property, or its proceeds, for the recovery of'which she can now maintain an action.

I. Section 2452 of the Code is as follows: “The widow’s share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the proper records of the circuit court.” It was not alleged in the reply that the notice contemplated by this section was ever-given to defendant. But it appears by the pleadings that she took possession of all of the property of the estate, and sold and converted it to her own use, acting on the assumption that the whole of it was given to her by the bequest. As she acted with full knowledge of the provisions of the will, perhaps it can be said that notice of its provisions by the other party in interest was not required. But we do not think it necessary to go into that question. The widow’s share, spoken of in the section, is that portion of the real and personal property of the husband which, by the provisions of the statute, descends to the widow. Code, §§ 2436, 2440. Under the provisions of these sections, one-third of the personal property not necessary for the payment of debts, and “one-third in value of all the legal and equitable estate in real property possessed by the husband at any time during the marriage, which have not been sold on execution or any other judicial sale, and to which the wife has made no relinquishment of her right,” descends to her if she survive him. By the provisions of section 2452, the right of the wife to take that portion of the property cannot bo affected by the will of the husband, unless die consents thereto in the manner prescribed in the. section. Is the right affected by th.e will in question? Clearly, we think not. By section 2441, the widow has the right to have her distributive share so set off as to include the ordinary dwelling-house given by law as a homestead, or so much thereof as will be equal to the share given her by section 2440. Her share, then, would be affected by any provision of the will which would require her to accept a smaller portion of the property than would descend to her under the statute, or which would bestow upon her other property in lieu of the homestead. But the present bequest is a devise to the widow of all of the property. Under it she took the title to the property, coupled with the power to make absolute disposition of it. Under the settled rule, it must be regarded as an absolute bequest to her. See In re Will of Burbank, 69 Iowa, 378, and authorities cited. Her share, then, was not “affected by the will of the husband;” for, under its provisions, she took, not only the portion of the property which would have descended to her under the statute, but the residue of the estate as well.

2. -: construction: absolute bequest. II. What we have said substantially disposes of the other questions in the case. The will confers upon plaintiff no interest either in the property or its proceeds. Tut, if it could be said that a trust 'was created in her favor, she clearly could not now maintain an .action for the recovery of any portion of the proceeds'; for the right to use the property “for her own use and benefit” which was conferred upon the widow, has not terminated. There is no provision for its termination in the will.

Upon no possible construction of the devise, then, could it be held that she can now maintain an action for its recovery.

Affirmed.