Kendall v. Kendall

42 Iowa 464

• Court: Supreme Court of Iowa
• Decided: March 23, 1876
• Status: Published

Opinion

Rothkook, J.

No objection is made to the right of the creditors to intervene. The appellants in argument claim that the widow is not entitled to dower for two reasons:

1. “She got the bulk of her husband’s estate as a home.stead,” and 2. “Under our statute the widow is not entitled to dower, till the debts of the hupband are paid.”

1. HOMESTEAD: husband and wife: conveyance I. In regard to the first point it is a sufficient answer thereto, that while it is true the petition alleges that the homestea(l was purchased with the husband’s means,- ^ does not state that when conveyance was made to the wife he was indebted, in any amount, to the intervenors or to others. At his death it was her separate estate, and is no part of the husband’s estate, to which she is entitled to dower.

II. The husband died in 1869, and the right of the widow to dower is measured by section 1, acts of 1862, chapter 151. The language of the statute is, “ one-third in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which has not been sold on execution or other judicial sale, to which the wife has made no relinquishment of her right, shall under the' direction of the court be set apart by the executor, administrator or heir, as her property, in fee simple, if she survive him.”

It is claimed that this is not a dower right, but that it repeals the common law dower of a life estate, and placed the widow on the same footing as the heirs, making her one-third subject to the payment of debts.

2. DOWER: enlargement of estate We are of the opinion that the above provision merely enlarged the dower estate of the widow, and that it did not abolish dower. Moore v. Kent et al., 37 Iowa, 20. Section 3 of the act of 1862 provides, that “each (husband and wife) is entitled to the same right of dower in the estate of the other,” thus recognizing the share allotted to the widow as dower.

3. ____:clamis of creditors. In Mock v. Watson et al., 41 Iowa, 241, this court held, that under the present law the widow is entitled to one-third in fee, regardless of the claims of creditors. Section 2440 of the Code, and section 1 of the act of 1862, are substantially the same so far as they fix the estate of the widow; in the former, however,, the estate of dower is expressly abolished, while as we have seen the latter in the third section recognizes it as still existing and only enlarged. We are content with the decision in the case last above cited, and the judgment of the court below will be

Affirmed.