157 Iowa 677 | Iowa | 1913
— It appears from the record in this case: That Alexander Livingston died in October, 1907, and at the time of his death was the owner of one hundred and sixty acres of land in Delaware county, and a homestead in Monticello, Iowa. That he left surviving him his widow, Sarah J. Livingston, that he died testate, leaving a will, which after providing for his just debts and funeral expenses reads as follows:
I will, devise and bequeath unto my beloved wife, Sarah J. Livingston, a life interest in all the property of which I may die seized or possessed, or to which I may be entitled, with remainder over as hereinafter described. She shall not have the right of sale except that if it be necessary to make repairs and improvements she may make the same from the proceeds of the sale of personal property, but she shall have the right to occupy or rent all of the land and appropriate unto herself the proceeds or rental only and she may change the character of the personal property, whenever necessary, and reinvest the same or use the personal property sufficient to maintain her in health and sickness if the rental of the real estate is insufficient therefor. This beanesL-shalL be in lieu of her dower or statutory^ rights! Tinto certain oN"my'~óMldren"T make the following bequest: James H. Livingston, $1.00; Roderick G. Livingston, $1.00; John D. Livingston, $5.00; Alexander B. Livingston, $5.00; Sarah A. Putnam, $300.00; Louisa Holcomb, $300.00; Euphemia Livingston, $300.00; which shall be paid upon the event of the death of my wife. After the death of my said wife and the payment of all legacies aforesaid, all that remains of my property shall be divided among the following named persons in the folowing proportions, to wit: Sarah H.*679 Putnam, one share; Louisa Holcomb, one share; Alice Darling, one-half of one share; Laura Arnold, one share; Archibald Livingston, one share; Euphemia Livingston, one share; Gladys Swift, one-fourth of one share; Edna Swift, one-fourth of one share-; Stanley Swift, one-fourth of one share; Esther Swift, one-fourth of one share.
That said will was admitted to probate on the 3d day of December, 1907, and duly probated, and the executor named therein, Howard Putnam, after being duly appointed by the court, duly qualified as required by law, and gave notice of his appointment. That the said Sarah J. Livingston, widow, died testate on the 12th day of March, 1909, and that the petitioners herein, Euphemia M. and Eoderick G. Livingston, are the sole legatees and devisees under her will. That the will of the said Sarah J. Livingston was admitted to probate and duly probated on the 2d day of April, 1909.
It is claimed by the applicants herein, Euphemia M. and Eoderick G. Livingston, sole devisees under the will of the said Sarah J. Livingston, that the said Sarah J. Livingston did not in any manner elect to take under the will of the said Alexander Livingston, and did not in any manner relinquish her right to her distributive share in the estate of her husband, Alexander Livingston, and at the time of her death she was entitled to a dower interest in his estate and they ask that the same be now admeasured and set off to them as sole devisees under her will. Upon the trial of this cause in the court below it was admitted of record that the said Sarah J. Livingston never appeared in court or made any election before the court in person to accept the provisions of the will, and that she never filed in said court any written acceptance of the provisions of the will, and that no election to take under the will of Alexander Livingston by her was ever made of record in said court.
The questions therefore to be determined are what
The survivor’s share can not be affected by any will of the husband unless consent thereto is given within six months after a copy thereof has been served upon the survivor by the other parties interested in the estate, and notice that such survivor is required to elect whether consent thereto will be given, which consent when given, shall be given in open court or by writing filed therein, which shall be entered on the proper records thereof; but if at the expiration of six months, no such election has been made, it shall be conclusively presumed that such survivor consents to the provisions of the will and elects to take thereunder.
There is no time fixed in the above statute within which “the other parties - interested in the estate” are required to serve the widow' with notice to elect. ’ There is no limit in the statute on them. The right is given them at any time to force the widow to an election, and to require her to make her election of record, and it is only after thisjiotice has been served upon her that the eonclusive presumption arisesT against her. This statute was undoubtedly enacted for the benefit of the “other parties
It is apparent that the foregoing construction of the present statute and of the widow’s right of election, and
3Trom the foregoing discussion it is apparent that we now hold that the widow may elect to accept the devise at any time, and that this fact can be shown by any competent evidence that satisfies the court that she did so elect before her death, and need not be made within six months; and need not be made a matter of record except as provided in section 3376-.
| This brings us to the question of fact — did she so elect? It appears that many times between the death of Alexander Livingston and her death the said Sarah J. Livingston stated in the presence of her children that she accepted the provisions of the will and would hold under the will that, if she took her distributive share, the income would not be sufficient to keep her during the remainder of her life; and that she would be able to live on the income of the whole property, that is, the rentals; that she accepted the will, was going to stand by it, and lease the farm. It appears that she did rent the farm, received and appropriated to her own use the entire rental of the farm, besides occupying the home at Monticello until the time
There are other questions discussed by counsel, but under the ruling herein made we find it unnecessary to enter into those questions. We therefore, hold that the court erred in holding that there was not sufficient competent evidence to warrant a finding under the law that Sarah J. Livingston elected to take under the will of Alexander Livingston, and in holding that the devisees named in the will of Sarah J. Livingston were entitled to a distributive share in the estate of Alexander Livingston; and the case is therefore — Reversed.