Ward v. Wolf

9 N.W. 348, 56 Iowa 465

• Court: Supreme Court of Iowa
• Decided: June 20, 1881
• Status: Published

Opinions

Beck, J.

l. per-ow’s siíáre? I. The case presents for determination this ■question: Is the right of a widow to the share of the personal property and real estate of her deceased husband prescribed by statute defeated by a will <of her husband executed before her marriage with him?

In our opinion certain provisions of the Code afford a solution of the question. It becomes, therefore, unimportant to ■consider the decisions of the courts touching the effect of the marriage of a testator upon a will before executed. They are understood to be conflicting.

Code, section 2452, is in the following language: “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 inter-bested in the estate, which consent shall" be entered on the ■jproper "records of the Circuit Court.”

It cannot be doubted that the subject of this provision is the share of the widow in the estate of her deceased husband. And it is equally plain that the will contemplated by the pro•vision is “any will” made before or after marriage of the .husband. The provision is not restricted to wills made after ■ marriage. The object of the statute is to deprive the husband ■of the power to dispose of his property in such a manner as ■to prevent his widow recovering the share allotted to her by the statute. If the law will not enforce a will made after marriage with the express purpose of defeating the right of the widow,-why should it enforce an ante-nuptial will when no such purpose can be inferred, for the reason that the marriage relations did not exist when it was executed?

II. "We will, now inquire what is included within the subject of the provision expressed by the words “widow’s share.” The word “share” is used in the context to describe the portion of the estate of a decedent which the law assigns to the widow. It is called the “ distributive share.” § § 2437, 2441. This term, it will be discovered, is applied both to the widow’s, portion of the personal property and to her interest in the real estate. In section 2437 it is applied to personalty, and in 2441 to real estate. It follows that section 2452 prohibits a disposition by will of either personal or real property which operates to deprive the widow of her share therein.

The decision of this court in The Estate of Davis, 36 Iowa, 24, Avas under a statute differing from the provision of the Code above considered, and is not, therefore, applicable to the case before us. We held, in that case, that a statute declaring the Avidow’s dower cannot be affected by a will did not control the disposition of personal property, for the reason that the term dower cannot be applied to personal property. In the statute now in force the term “ distributive share ” is used instead of dower, and, as we have seen, it is applicable to both personal and real property.

Smith v. Zuckmeyer, 53 Iowa, 14, and Linton v. Crosby, 54 Iowa, 478, involved real property only, and the questions considered in each case relate to the interest of the husband and wife in the lands of his or her spouse. Such an interest, it is held in both cases, is designated in the statute by the term distributive share. The cases do not determine whether the interest in personal property is included in the term distributive share, and is or is not subject to disposition by will. They have no bearing on the question in this case which involves the right of the wife to the personal property of her deceased husband.

III. No question is raised in this case involving the correctness of the decision of the court below holding the will to be valid as to all property not included in the widow’s share. This question we have not considered, and do not decide. The decision of the Circuit Court is

Affirmed.