Robinson, C. J.
On the twenty-fourth day of October, 1890, Mary 0. Jones executed a will, which contained provisions as follows:
“First. I give to my brother, Cai’son Jones Agan, one thousand dollars in money. Second. I give to my husband, L. M. Jones, and O. M. Jones, my youngest daughter, one thousand dollars in money; and, with thirty dollars that is due me as rent on my place for the year just past, he, my husband, shall pay all my sickness and burial expenses; and the balance of my money, which is six thousand, nine hundred and seventy-seven dollars, to be divided equally with my three children, namely, Miss J. J. Moon, J. J. Moon, E. A. Moon, as they become of age. * * *”
The only other property included in the will was a tract of land of small value, not involved in this appeal. O. M. Jones was the child of the decedent and her husband, Levi M. Jones, a defendant.in this action. The three children last named were her children by a former husband. The date of her death is not shown, but the will was filed for probate on the twentieth day of [193]*193November, 1890. On the thirteenth day of February, 1891, the husband, Jones, filed in the office of the clerk, and caused to be made of record, a refusal to take under the will, and an election to take the share to which he would have been entitled had no will been made. Three days later the will was admitted to probate. It appears from the record and admissions of counsel that, three or four days before the will was made, Mrs. Jones had given to her husband a check for one thousand dollars on the bank in which her funds were deposited, which was held until after her death, and then presented and paid. In April, 1891, James M. May, as guardian of the minor children designated in the will as Miss J. J. Moon, J. J. Moon, and E. A. Moon, filed with the records of the estate in the district court a paper contesting the right of Jones to elect to take a share in the estate in violation of the terms of the will, on grounds stated as follows:
“First. The property disposed of by the will is personal property, and as to such property the husband has no right of election, but is bound by the will of the wife. Second. That said Levi M. Jones is barred and estopped from objecting to said will for the reason that during the lifetime of said Mary C. Jones the said Levi Jones, her husband, had full knowledge of the provisions of said will, and made no objection thereto, but at all times expressed his consent to and his acquiescence in the same, whereby the said testator was induced to, and did, rely upon said consent and acquiescence, and made no other disposition of. her estate. The said Levi M. Jones has availed himself of the benefits conferred on him by said will, and received and accepted from the testator during her lifetime a check for the one thousand dollars bequeathed to him, and, after the death of said testator, cashed said cheek, and obtained the proceeds of the same.”
[194]*194Proceeding were subsequently had which resulted in findings by the court and judgment to the following effect: That Jones was not bound by the terms of the will, but had a right to take his distributive share under the law, and that he had elected so to do; that his right to take such distributive share was in no manner affected by the check given to him by his wife before, and paid after, her death.
i. wilis: wue’s estaiePrigiits oí husband. I. The first question discussed by counsel is stated as follows: ‘ ‘Is a disposition of personal property by the "will of the wife binding on the husband'?” Section 2436 of the Code provides that personal property of the deceased, not necessary for the payment of debts, nor otherwise disposed of, as hereinbefore provided, shall be distributed to the same persons and in the same proportions as though it were real estate.” Section 2440 provides that “one-third in value of all the legal or equitable estates in real property possessed by the husband at any time during 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, shall be set apart as her property in fee simple, if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. All provisions made in this chapter in regard to'- the widow of a deceased husband shall be applicable to the surviving husband of a deceased wife. The estates of dower and curtesy are hereby abolished.” Section 2452 provides that “the widow’s share can not 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 [now district] court. ’ ’ That section was construed in Ward v. Wolf, 56 Iowa, 465, 466, and Linton v. Crosby, 61 Iowa, 401, 404, where it was held that the [195]*195word ‘‘share’’ included both personal and real property, and that the husband can not so dispose of his personal property as to deprive the wife of her distributive share. The three sections specified are parts of chapter 4 of title 16 of the Code; and, as by section 2440 all the provisions of that chapter in regard to the widow of a deceased husband are applicable to the surviving husband of a deceased wife, it follows that the wife can not by will deprive her surviving husband of his distributive share in her personal estate.
It is said that in Wilson v. Breeding, 50 Iowa, 629, 632, this court held that section 2440 is applicable to real estate only. It is true that in that case it was said of section 2440 that the provisions of the chapter in which it occurs relate exclusively to real estate, but that is a manifest error. The question which the court was really called upon to determine was whether section 2440 applies to section 2371, which relates to personal property of a deceased husband which was exempt from execution in his hands. The court rightly said that section 2440 did not so apply, for the reason that, hy its express words, it is limited to the provisions of the chapter in which it occurs, while section 2371, although under the same title, is found in another chapter. "What was said in regard to real estate was not necessary to a determination of the case. We conclude that the question under consideration must be answered in the negative. See Houston v. Lane, 62 Iowa, 291, 294.
2. —: consent by'ifnsSanaf estoppel: evidence. II. It is contended that Jones is estopped to take any of the personal property of his late Avife’s estate, ’ excepting under the provisions of her will'. The facts constituting the alleged estoppel are substantially as follows: On the twentieth day of October, 1890, she had on deposit in the Knoxville National Bank nine thousand, twenty-seven dollars and twenty cents. On that day she gave [196]*196to her brother, L. C. Agan, a check for one thousand dollars, and on the next day gave to him a second check, for one hundred dollars, and gave to her husband the check for one thousand dollars, to which reference has been made. It does not appear that when the will was made, on the twenty-fourth day of the month, any of the checks so drawn had been paid.
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Robinson, C. J.
On the twenty-fourth day of October, 1890, Mary 0. Jones executed a will, which contained provisions as follows:
“First. I give to my brother, Cai’son Jones Agan, one thousand dollars in money. Second. I give to my husband, L. M. Jones, and O. M. Jones, my youngest daughter, one thousand dollars in money; and, with thirty dollars that is due me as rent on my place for the year just past, he, my husband, shall pay all my sickness and burial expenses; and the balance of my money, which is six thousand, nine hundred and seventy-seven dollars, to be divided equally with my three children, namely, Miss J. J. Moon, J. J. Moon, E. A. Moon, as they become of age. * * *”
The only other property included in the will was a tract of land of small value, not involved in this appeal. O. M. Jones was the child of the decedent and her husband, Levi M. Jones, a defendant.in this action. The three children last named were her children by a former husband. The date of her death is not shown, but the will was filed for probate on the twentieth day of [193]*193November, 1890. On the thirteenth day of February, 1891, the husband, Jones, filed in the office of the clerk, and caused to be made of record, a refusal to take under the will, and an election to take the share to which he would have been entitled had no will been made. Three days later the will was admitted to probate. It appears from the record and admissions of counsel that, three or four days before the will was made, Mrs. Jones had given to her husband a check for one thousand dollars on the bank in which her funds were deposited, which was held until after her death, and then presented and paid. In April, 1891, James M. May, as guardian of the minor children designated in the will as Miss J. J. Moon, J. J. Moon, and E. A. Moon, filed with the records of the estate in the district court a paper contesting the right of Jones to elect to take a share in the estate in violation of the terms of the will, on grounds stated as follows:
“First. The property disposed of by the will is personal property, and as to such property the husband has no right of election, but is bound by the will of the wife. Second. That said Levi M. Jones is barred and estopped from objecting to said will for the reason that during the lifetime of said Mary C. Jones the said Levi Jones, her husband, had full knowledge of the provisions of said will, and made no objection thereto, but at all times expressed his consent to and his acquiescence in the same, whereby the said testator was induced to, and did, rely upon said consent and acquiescence, and made no other disposition of. her estate. The said Levi M. Jones has availed himself of the benefits conferred on him by said will, and received and accepted from the testator during her lifetime a check for the one thousand dollars bequeathed to him, and, after the death of said testator, cashed said cheek, and obtained the proceeds of the same.”
[194]*194Proceeding were subsequently had which resulted in findings by the court and judgment to the following effect: That Jones was not bound by the terms of the will, but had a right to take his distributive share under the law, and that he had elected so to do; that his right to take such distributive share was in no manner affected by the check given to him by his wife before, and paid after, her death.
i. wilis: wue’s estaiePrigiits oí husband. I. The first question discussed by counsel is stated as follows: ‘ ‘Is a disposition of personal property by the "will of the wife binding on the husband'?” Section 2436 of the Code provides that personal property of the deceased, not necessary for the payment of debts, nor otherwise disposed of, as hereinbefore provided, shall be distributed to the same persons and in the same proportions as though it were real estate.” Section 2440 provides that “one-third in value of all the legal or equitable estates in real property possessed by the husband at any time during 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, shall be set apart as her property in fee simple, if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. All provisions made in this chapter in regard to'- the widow of a deceased husband shall be applicable to the surviving husband of a deceased wife. The estates of dower and curtesy are hereby abolished.” Section 2452 provides that “the widow’s share can not 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 [now district] court. ’ ’ That section was construed in Ward v. Wolf, 56 Iowa, 465, 466, and Linton v. Crosby, 61 Iowa, 401, 404, where it was held that the [195]*195word ‘‘share’’ included both personal and real property, and that the husband can not so dispose of his personal property as to deprive the wife of her distributive share. The three sections specified are parts of chapter 4 of title 16 of the Code; and, as by section 2440 all the provisions of that chapter in regard to the widow of a deceased husband are applicable to the surviving husband of a deceased wife, it follows that the wife can not by will deprive her surviving husband of his distributive share in her personal estate.
It is said that in Wilson v. Breeding, 50 Iowa, 629, 632, this court held that section 2440 is applicable to real estate only. It is true that in that case it was said of section 2440 that the provisions of the chapter in which it occurs relate exclusively to real estate, but that is a manifest error. The question which the court was really called upon to determine was whether section 2440 applies to section 2371, which relates to personal property of a deceased husband which was exempt from execution in his hands. The court rightly said that section 2440 did not so apply, for the reason that, hy its express words, it is limited to the provisions of the chapter in which it occurs, while section 2371, although under the same title, is found in another chapter. "What was said in regard to real estate was not necessary to a determination of the case. We conclude that the question under consideration must be answered in the negative. See Houston v. Lane, 62 Iowa, 291, 294.
2. —: consent by'ifnsSanaf estoppel: evidence. II. It is contended that Jones is estopped to take any of the personal property of his late Avife’s estate, ’ excepting under the provisions of her will'. The facts constituting the alleged estoppel are substantially as follows: On the twentieth day of October, 1890, she had on deposit in the Knoxville National Bank nine thousand, twenty-seven dollars and twenty cents. On that day she gave [196]*196to her brother, L. C. Agan, a check for one thousand dollars, and on the next day gave to him a second check, for one hundred dollars, and gave to her husband the check for one thousand dollars, to which reference has been made. It does not appear that when the will was made, on the twenty-fourth day of the month, any of the checks so drawn had been paid. It will be noticed that the bequests of money made by the will, exclusive of the thirty dollars due for rent, amount to eight thousand, nine hundred and seventy-seven dollars, or to fifty dollars and twenty cents less than the bank deposit. The husband knew the provisions of the will, and assented to them before he received payment of the check. It is said that, as the check had not been paid when the will was made, the money against which it was, drawn belonged to the testatrix, and was so treated by her in the will; that the check was only the means of carrying into effect one of the provisions of the will; and that, when the husband received payment of it, he, in effect, consented to accept under the will.
The case of Hainer v. Legion of Honor, 78 Iowa, 246, is relied upon by appellant as sustaining his claim. In that case a certificate of life insurance had been issued to one Grabel, before he was married, for the benefit of his mother, in case of his death. After the certificate was issued, Grabel married, and had one child, but permitted the certificate to stand without making any new direction as to the payment of the amount thereof in case of his death. He made a will, however, by which he bequeathed to his daughter one-half of the amount of the certificate, and to his mother the other half, to be invested for her for a yearly income, and at her death to revert to the daughter. An interest in real estate was also devised to the mother.' She knew of the will, and acquiesced in its provisions. Her son was induced to rely on that [197]*197acquiescence, and to believe that the provisions of the will would be carried out, and did not make a change in the beneficiary of the certificate in the manner required by his contract of insurance. After his death the mother accepted the provisions of the will which were favorable to her, and it was held that she was estopped by that fact and the other facts stated to claim more of the benefits of the certificate than those specified in the will. In this case the husband has taken nothing under the will. It is not showD that the testatrix intended that the check- should be treated as of no effect, excepting as it should serve to give effect to the will. It was drawn and delivered several days before the will was made, and, so far as shown, before the making of the will was contemplated. It is not referred to in the will, and was not given for the amount bequeathed to the husband. No agreement that it should be surrendered or treated as money bequeathed by the will is shown, and the only circumstance which may be said to indicate a purpose on the part of the testatrix to have the money which should be paid on the check treated as money paid according to the terms of the will is the fact that the money she had at the time the will was made was not sufficient to pay the checks given to her brother and husband, in addition to bequests made by the will; but that fact does not overcome the presumption that the giving of the check was an independent and completed transaction, which arises from all the facts disclosed by the record. We conclude that the husband is not estopped to claim his distributive share of the estate of decedent.
gift: death of payment: III. It is said that, as the cheek was designed to be a mere gift, payment was required to give it effect, and that the death of the donor before it was paid operated to revoke the authority of the bank to pay it, and, therefore, the gift was never perfected, and the check, if [198]*198not a means of carrying out the provisions of the will, should be treated as a nullity. Some authorities hold that a gift by check is not complete until the check is paid, on the ground that it is not an appropriation of money of the drawer in bank, but a mere request or order on the bank to pay the amount specified when the check is presented, which may be revoked before acceptance. 8 Am. and Eng. Encyclopedia of Law, 1321, and authorities cited. See, also, note to Hemphill v. Yerkes, [19 Atl. Rep. 342,] 19 Am. St. Rep. 609. Whether the drawer of such a check may withdraw the authority to pay it after delivery and before acceptance is a question not involved in this case. Mrs. Jones made no effort to prevent its payment, manifested no desire that it should not be paid, and, so far as it is shown, gave it without condition as a gift inter vivos.
In Roberts v. Austin Corbin, 26 Iowa, 315, it was held that the delivery of a bank check carries with it a right of action against the bank on which it is drawn, if it have sufficient funds of the drawer on deposit to use for that purpose, and that such right was not defeated by a general assignment for the benefit of creditors made after the check was drawn, but before it was presented for payment. That holding was based upon the implied promise of the bank to pay out on the cheeks of the depositor the funds deposited. It was said that, when the depositor has indicated by his check the person to whom the money shall be paid, the promise inures to his benefit. The recent case of Fonner v. Smith, 47 N. W. Rep. (Neb.) 632, is to the same effect. In Poole v. Carhart, 71 Iowa, 37, bank checks were distinguished from other orders for the payment of money. It may be true that a check can not be regarded as an assignment of “funds/7 within the ordinary meaning of that term, but it transfers to the payee a right to recover its amount of the bank on which it is drawn, if the drawer have a sufficient deposit [199]*199when it is presented, and that right vests when the check is delivered. Some authorities distinguish between cases where the checks are drawn for a valuable consideration and where they are mere gifts, the holding of such authorities being that in the former-class of cases death does not revoke the checks, and that in the latter it does. Tiedeman on Commercial Paper, section 448. But when the delivery is coupled with an intent to transfer a present interest in the money represented by the check, and no revocation is attempted, it seems to us the intent of the donor should be given effect, and the transaction be held to transfer a present interest, and a right to the payment of the check after the death of the drawer, as well as before. See 2 Morse on Banks and Banking, sections 549-551. Whether the cheek in controversy should have been paid by the bank, or by the legal representative of decedent, we need not determine, as that question is not discussed, and, in view of the fact that the check has been paid, it is not material in this case.
The judgment of the district court is arnírmed.