In re Estate of Blaney

Supreme Court of Iowa

In re Estate of Blaney

34 N.W. 768, 73 Iowa 113

CourtSupreme Court of Iowa

DecidedOctober 24, 1887

StatusPublished

Cited by2 cases

This text of 34 N.W. 768 (In re Estate of Blaney) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Estate of Blaney, 34 N.W. 768, 73 Iowa 113 (iowa 1887).

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Opinion

Seevers, J.

By his last will James Blaney made bequests as follows: “ First, I give and bequeath to my beloved wife, [114]*114Elvira Blanev, the one-third of my estate;” and then follow-bequests of different sums of money to certain named children, and the last clause of the will is as follows: “Seventh, I give and bequeath the remainder of my estate to be divided equally between my three daughters; * * * and, lastly, I appoint my beloved wife, Elvira Blaney, my sole executrix of this my last will.” The estate consisted wholly of personal property, and the question in the circuit court and here is whether the widow can take both the one-third devised to her in the will, and also the distributive share or dower allowed her by law. The circuit court held that she could take both, and the persons named in the last clause of the will appeal.

It was held in Ward v. Wolf, 56 Iowa, 465, that a widow was entitled to a dower or a distributive share of the personal property owned by her deceased husband. In Snyder v. Miller, 67 Iowa, 261, it is, in substance, said that unless a devise to a wife be ascertained, either by express words or a necessary implication, to be in lieu of a dower, she will not be compelled to elect which she will take, but will be entitled to both. In that case there was a specific devise of certain real estate to the widow, and it was held that the manifest intent of the testator would he defeated if the widow took the property specifically devised to her and in addition thereto ■the distributive share allowed her by law. We are unable to draw a distinction between the will in question and the one construed in Daugherty v. Daugherty, 69 Iowa, 677, in which it was held that the widow could take and hold a life-estate in all the real estate owned by her husband at his death, and also the distributive share allowed her by law in lien of dower. In this case the widow may well take the one-third devised to her; also a distributive share of the estate. It cannot be supposed that her husband intended to deprive her- of the latter, unless he so in terms has said, or it can be fairly so implied.

Following the case last above cited, we think the judgment of the circuit court must be Affirmed.

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Seevers, J.

By his last will James Blaney made bequests as follows: “ First, I give and bequeath to my beloved wife, [114]*114Elvira Blanev, the one-third of my estate;” and then follow-bequests of different sums of money to certain named children, and the last clause of the will is as follows: “Seventh, I give and bequeath the remainder of my estate to be divided equally between my three daughters; * * * and, lastly, I appoint my beloved wife, Elvira Blaney, my sole executrix of this my last will.” The estate consisted wholly of personal property, and the question in the circuit court and here is whether the widow can take both the one-third devised to her in the will, and also the distributive share or dower allowed her by law. The circuit court held that she could take both, and the persons named in the last clause of the will appeal.

It was held in Ward v. Wolf, 56 Iowa, 465, that a widow was entitled to a dower or a distributive share of the personal property owned by her deceased husband. In Snyder v. Miller, 67 Iowa, 261, it is, in substance, said that unless a devise to a wife be ascertained, either by express words or a necessary implication, to be in lieu of a dower, she will not be compelled to elect which she will take, but will be entitled to both. In that case there was a specific devise of certain real estate to the widow, and it was held that the manifest intent of the testator would he defeated if the widow took the property specifically devised to her and in addition thereto ■the distributive share allowed her by law. We are unable to draw a distinction between the will in question and the one construed in Daugherty v. Daugherty, 69 Iowa, 677, in which it was held that the widow could take and hold a life-estate in all the real estate owned by her husband at his death, and also the distributive share allowed her by law in lien of dower. In this case the widow may well take the one-third devised to her; also a distributive share of the estate. It cannot be supposed that her husband intended to deprive her- of the latter, unless he so in terms has said, or it can be fairly so implied.

Following the case last above cited, we think the judgment of the circuit court must be Affirmed.

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34 N.W. 768, 73 Iowa 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-blaney-iowa-1887.

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