149 Iowa 658 | Iowa | 1910
The deed assailed was executed June 10, 1909, by Amanda A. Barnes, conveying an undivided onetliird of about two hundred and eighty-nine acres of land to the defendant, a grandson. This land had belonged to W. B. Barnes, whose will had been admitted to probate in 1884. It bequeathed his personal property after the payment of debts and funeral expense, “to be equally divided between Amanda A. Barnes, my beloved wife, and my six children, to wit (naming them). And I hereby give and bequeath to my beloved wife, Amanda Barnes, all of my real estate as long as she remains William B. Barnes’ widow and I hereby appoint J. M. Archer, to superintend the real estate and the proceeds to go to Amanda Barnes as long as she remains the widow of William B. Barnes.” The widow received the share of the personalty bequeathed and had enjoyed the use of the realty up to the time this action was begun. The petition, as first amended, alleged the facts as recited above, that plaintiffs are three of the testator’s children, and that by reason of accepting under the will the widow was estopped from claiming a distributive share in the testator’s estate and ashed that the deed be set aside. The defendant demurred on the grounds that plaintiffs were not proper parties, being without interest in the subject matter and that the facts stated did not entitle them to the relief prayed. The demurrer was sustained by the court, Hon. O. D. "Wheeler presiding, and thereafter plaintiffs filed an amendment to the petition, more specifically detailing the facts as recited, and in addition thereto alleging that the widow at the time of executing the deed to defendant was of unsound mind, and did so while laboring under the delusion that the grantee resembled her deceased husband when of like age and that she should do something for him because of this. A motion to strike this amendment for that the rul
It may be conceded, without deciding that the widow took but a life estate under the will, for otherwise the gift was of the fee simple, in which event the widow could convey the whole or any part of the estate to whom she pleased.
Even though in asserting her claim to the use and control of the estate for life, she may be said to have ignored her .right to a distributive share, or to have given reason to suppose that she would not assert such right, the pleadings do not allege this to have misled any one to his prejudice. We are of opinion that she was entitled to take under the will and also retain the undivided one-third of the realty given her by the law.
Erom this conclusion it necessarily follows that plaintiffs had no interest in the subject matter, that the last amendment to the petition did not meet this objection, and for this reason the motion to strike was rightly sustained, as also was the demurrer. — Affirmed.