Granger, J.
i estates of allowance to nuptiaVcon-6" tract. I. The question is first presented as to the right of the court to make any allowance because 0i' contract and the provisions of the will- The effect claimed for them is that they diyest the court of any authority to make an allowance, under the provisions of the Code, section 2375, even though the facts, under other circumstances, would require it. In other words, as to the petitioner, they supersede the purposé of the statute. It is very manifest that the testator’s purpose in the will was to carry out the terms of the antenuptial agreement, and that the limitations of the will as to the right of the petitioner are no. greater than a fair construction of the agreement will warrant. To a clear understanding of appellant’s claim, and the language of the agreement, relied on for its support, we quote a clause in his argument, which includes the language of the contract: “Our position is that the contract, in express terms, gives the right to dispose of all the property that he then owned or might afterwards acquire, and such right is' given in the following clause of the contract: ‘ During their marriage neither party shall in any manner be restricted in the control or disposition of their property, both real and personal, which [188]*188they have or may hereafter acquire, and either may execute deeds of conveyance without the consent or signature of the other, the saíne as if unmarried.’ ” It is then urged that the right of disposition includes a right to dispose of it by will, and, as we infer, such being the effect of the contract, the will must receive that construction. This leads us directly to a construction of the contract as bearing on the point.
We think a fair consideration of the question involves a consideration of other language in the contract than that quoted ; but without other language it is exceedingly doubtful if it would bear the construction claimed for it. It must be understood that contracts designed to divest the wife of the benefits of the statutes in her favor, after the death of her husband, and especially a statute providing for a necessary support, immediately following such death, must not be of doubtful interpretation, but specific and certain as to such intent. In general, the provisions of the statute in this respect embrace interests, not alone personal to the wife, but to the children, and in' a sense to the public, and a law thus designed is to be guarded with caution. In this case there are no children to be affected, but in the approval of contracts, by which its provisions may be set aside, the general purpose and scope of the law is to be kept in view. The language of the contract quoted by appellant is but a single sentence, and was a provision for the disposition of property “ during their marriage ; ” and the last clause of the sentence is, “and either party may execute deeds of conveyance without the consent or signature of the other, the same as if unmarried.” There is nothing in the language referring to a testamentary right, and the language is such as naturally applies to the disposition of property otherwise than by will. The clause “during their marriage” is a limitation as to time, and is entirely unnecessary, and to be disregarded, in effect, if the construction urged is to obtain. A reference to the sentence, with such words omitted, will show how useless they are for the construction claimed. In fact, [189]*189it seems to us more than useless, as they seem to impress the sentence with a different meaning. We think it cannot be successfully claimed that the mere execution of a will during the life of the testator is the disposition of property. Of course, it is a step in that direction, but the property is not disposed of until the will becomes operative by the death of the testator. While the testator lives, he owns and controls the property. He may revoke the will at pleasure. During the life of the testator, how much more does a will dispose of his property than the law would dispose of it without the will ? Each fixes the status of his property at death. They become effective as to an estate at the same time. As to the'intestate the law stands in lieu of a will, and this is true both before and after the decease. A principal purpose of a will is to change the direction of the law as to the descent of property; and in its absence we assume that the provisions of the law are satisfactory, and adopted in its stead. It seems to us very clear that the mere execution of a will was not within the intent of the parties, — a disposition of property during marriage.
The contract, however, furnishes other reasons for' believing the parties did not so intend. The careful reader of the contract will observe that it attempts: First, to provide for the mutual rights of the parties; and, second, to provide for the rights of the wife in the property of the husband'after his death. Hence it will be seen that they are expressly contracting with reference to a subj ect that should, and naturally would, embrace the one under consideration. There is an express relinquishment of dower and homestead right in or to any property of the estate. While thus contracting as to her rights under the provisions of the law after his .death, and specifying what should not be claimed, we must assume that if more had been intended it would have been expressed. The allowance claimed is not embraced in the dower, and, of course, not in the homestead. Mahaffy v. Mahaffy, 61 Iowa, 679. The cases of Olleman v. Kelgore, 52 Iowa, 38, and [190]*190Otto v. Doty, 61 Iowa, 23, are not in conflict with this view. Those cases refer to the effect of a will after death and before probate. We do not say that the will at death would not have operated to dispose of the property, but it would not have been a disposition daring marriage as contemplated by the contract. Inasmuch as the record discloses a probability of litigation as to the homestead, we refrain from any such consideration of the case before us as would in any manner intimate an opinion or prejudgment as to the question of either homestead or dower. With our view of the contract, the district court was not precluded by it from making an allowance to the widow, if otherwise entitled under the law.
_._. ' tere tot¿eiat’ considered, II. It is urged that the provision of the will in favor of the petitioner is sufficient for her support without any allowance. The will gave her the interest of three thousand dollars, and it is doubtful if more than six per cent, could be realized, as the will specifies no rate per cent. It has been held that the district court has a discretion as to such allowances. Caldwell v. Caldwell, 54 Iowa, 457. We should not interfere where such discretion is fairly exercised. The testator was possessed of a good estate, and with his wife, until a few days before his death, kept a home where she continued to reside afterwards, at least a part of the time. In saying whether or not petitioner should have an allowance, it was proper for the district court to consider the resources of the petitioner in her own right; the allowance made her by the testator; the extent of the estate ; the demands upon it; the health of the petitioner ; her station in society; and such other matters as are necessary and reasonable. We assume that every husband designs this much in favor of his wife. The allowance is only to be made if necessary. Code, sec. 2375. The necessity is to be determined largely from the facts of each particular case.
Free access — add to your briefcase to read the full text and ask questions with AI
Granger, J.
i estates of allowance to nuptiaVcon-6" tract. I. The question is first presented as to the right of the court to make any allowance because 0i' contract and the provisions of the will- The effect claimed for them is that they diyest the court of any authority to make an allowance, under the provisions of the Code, section 2375, even though the facts, under other circumstances, would require it. In other words, as to the petitioner, they supersede the purposé of the statute. It is very manifest that the testator’s purpose in the will was to carry out the terms of the antenuptial agreement, and that the limitations of the will as to the right of the petitioner are no. greater than a fair construction of the agreement will warrant. To a clear understanding of appellant’s claim, and the language of the agreement, relied on for its support, we quote a clause in his argument, which includes the language of the contract: “Our position is that the contract, in express terms, gives the right to dispose of all the property that he then owned or might afterwards acquire, and such right is' given in the following clause of the contract: ‘ During their marriage neither party shall in any manner be restricted in the control or disposition of their property, both real and personal, which [188]*188they have or may hereafter acquire, and either may execute deeds of conveyance without the consent or signature of the other, the saíne as if unmarried.’ ” It is then urged that the right of disposition includes a right to dispose of it by will, and, as we infer, such being the effect of the contract, the will must receive that construction. This leads us directly to a construction of the contract as bearing on the point.
We think a fair consideration of the question involves a consideration of other language in the contract than that quoted ; but without other language it is exceedingly doubtful if it would bear the construction claimed for it. It must be understood that contracts designed to divest the wife of the benefits of the statutes in her favor, after the death of her husband, and especially a statute providing for a necessary support, immediately following such death, must not be of doubtful interpretation, but specific and certain as to such intent. In general, the provisions of the statute in this respect embrace interests, not alone personal to the wife, but to the children, and in' a sense to the public, and a law thus designed is to be guarded with caution. In this case there are no children to be affected, but in the approval of contracts, by which its provisions may be set aside, the general purpose and scope of the law is to be kept in view. The language of the contract quoted by appellant is but a single sentence, and was a provision for the disposition of property “ during their marriage ; ” and the last clause of the sentence is, “and either party may execute deeds of conveyance without the consent or signature of the other, the same as if unmarried.” There is nothing in the language referring to a testamentary right, and the language is such as naturally applies to the disposition of property otherwise than by will. The clause “during their marriage” is a limitation as to time, and is entirely unnecessary, and to be disregarded, in effect, if the construction urged is to obtain. A reference to the sentence, with such words omitted, will show how useless they are for the construction claimed. In fact, [189]*189it seems to us more than useless, as they seem to impress the sentence with a different meaning. We think it cannot be successfully claimed that the mere execution of a will during the life of the testator is the disposition of property. Of course, it is a step in that direction, but the property is not disposed of until the will becomes operative by the death of the testator. While the testator lives, he owns and controls the property. He may revoke the will at pleasure. During the life of the testator, how much more does a will dispose of his property than the law would dispose of it without the will ? Each fixes the status of his property at death. They become effective as to an estate at the same time. As to the'intestate the law stands in lieu of a will, and this is true both before and after the decease. A principal purpose of a will is to change the direction of the law as to the descent of property; and in its absence we assume that the provisions of the law are satisfactory, and adopted in its stead. It seems to us very clear that the mere execution of a will was not within the intent of the parties, — a disposition of property during marriage.
The contract, however, furnishes other reasons for' believing the parties did not so intend. The careful reader of the contract will observe that it attempts: First, to provide for the mutual rights of the parties; and, second, to provide for the rights of the wife in the property of the husband'after his death. Hence it will be seen that they are expressly contracting with reference to a subj ect that should, and naturally would, embrace the one under consideration. There is an express relinquishment of dower and homestead right in or to any property of the estate. While thus contracting as to her rights under the provisions of the law after his .death, and specifying what should not be claimed, we must assume that if more had been intended it would have been expressed. The allowance claimed is not embraced in the dower, and, of course, not in the homestead. Mahaffy v. Mahaffy, 61 Iowa, 679. The cases of Olleman v. Kelgore, 52 Iowa, 38, and [190]*190Otto v. Doty, 61 Iowa, 23, are not in conflict with this view. Those cases refer to the effect of a will after death and before probate. We do not say that the will at death would not have operated to dispose of the property, but it would not have been a disposition daring marriage as contemplated by the contract. Inasmuch as the record discloses a probability of litigation as to the homestead, we refrain from any such consideration of the case before us as would in any manner intimate an opinion or prejudgment as to the question of either homestead or dower. With our view of the contract, the district court was not precluded by it from making an allowance to the widow, if otherwise entitled under the law.
_._. ' tere tot¿eiat’ considered, II. It is urged that the provision of the will in favor of the petitioner is sufficient for her support without any allowance. The will gave her the interest of three thousand dollars, and it is doubtful if more than six per cent, could be realized, as the will specifies no rate per cent. It has been held that the district court has a discretion as to such allowances. Caldwell v. Caldwell, 54 Iowa, 457. We should not interfere where such discretion is fairly exercised. The testator was possessed of a good estate, and with his wife, until a few days before his death, kept a home where she continued to reside afterwards, at least a part of the time. In saying whether or not petitioner should have an allowance, it was proper for the district court to consider the resources of the petitioner in her own right; the allowance made her by the testator; the extent of the estate ; the demands upon it; the health of the petitioner ; her station in society; and such other matters as are necessary and reasonable. We assume that every husband designs this much in favor of his wife. The allowance is only to be made if necessary. Code, sec. 2375. The necessity is to be determined largely from the facts of each particular case. The district court, with the facts before it, adjudged an allowance necessary, and, in view of the record, we think justly so. Is the allowance too much % [191]*191It seems liberal, and yet, in view oí the health of the petitioner, the extent of the estate, the scanty supply of provisions left by the executors, and, if petitioner shall be compelled to rent a home, her right to the homestead being questioned, we are not prepared to say that it is. It is not for us to say that the petitioner shall take just enough to board and clothe her in the most economical way, that legatees, who have before been abundantly provided for from the estate, may take more. We should rather sustain the action of the district court in such an allowance as in its judgment will yield a support commensurate with the wants and the rights of the petitioner, when to do so is not to deny creditors a full payment, nor a support to those dependent on the estate for it. In view of the facts, we are not disposed to disturb the amount of the allowance.
____ ' pñohty of III. It.is said that the law contemplates an allowance from the property of the estate (Code, sec. 2375), and that, as the property is disposed of by will, which has been admitted to probate, there is no property as a basis for the allowance. This allowance, when necessary, is to be paid in preference to the debts of the estate, and the latter are preferred to the rights of the legatees. Estate of Dennis, 67 Iowa, 110; Estate of McReynolds, 61 Iowa, 586. The action of the district court is
Affirmed'.