63 Iowa 124 | Iowa | 1884
I. Calvin R. Johnson, in bis life time, executed a will which disposes of all his property in the following language:
“I give and bequeth unto my wife, Martha Y. Johnson, absolutely in fee simple, the undivided third part of the following real estate, situated and being in Clarke county, state of Iowa, to-wit:
“ The n e J of section nineteen, and the sw|of the s w ¿ of section 31, in township 71, range, 27; also the s w | of the s e | of section 25, township 72, range 26; lots 1, 2, 3 and 4 in block 15 in East Hopeville; also 15 acres off the south side of the n v|sw|of section 6, township 70, range 27, in Decatur county, Iowa, together with all and singular the improvements thereon, and the ajipurtenances thereunto belonging or appertaining.
“ I give and bequeath to my said wife all the personal property and effects of every nature and kind of which I may die seized or possessed, wherever the same may be found, as well as all the real estate belonging to me at the time of my death, not hereinbefore named or described. It is my will, and I hereby direct, that any portion of the property, real, personal or mixed, herein bequeathed to my said wife, and that may remain at her death, shall be and become the property of any surviving child or children, if any — the child or children of myself and my said wife, and the fruits of our marriage. And if more than one shall survive my said wife, then the said property shall be divided among them all in equal shares; but if no such child or children survive my said wife, then it is my will, and I hereby direct, that all the property herein bequeathed to my said wife, and remaining at her death or*126 remarriage, shall revert to and become the property of my children by a former marriage, and shall be divided among them in equal shares. I hereby nominate and appoint my wife, Martha V. Johnson, executrix of this my last will and testament.”
This will was admitted to probate after the death of the testator, and this action is brought to set it aside, on the ground that, subsequent to the execution of this will, a daughter, now an infant of tender years, was born to the testator. The plaintiffs are children by a former marriage, and the defendants are the widow of the testator and his infant daughter.
III. Counsel for defendants insist that, if- provision be made in the testament for the child subsequently born, it will not be within the rule, and will stand. Without determining the correctness of this position, let it be admitted for the purposes of the case.