57 Iowa 683 | Iowa | 1882
It will be conceded the relief asked is inconsistent with and will render nugatory an express provision of the will, and that the plaintiff has in writing consented to and accepted the provision made for her in the will. But the question remains, whether, under the statute, the writing can be regarded as sufficient. or competent evidence of such fact. The provision of the statute is as follows: “ The widow’s share cannot be affected by any will of the deceased, unless she. consents thereto within
When the foregoing statute was reported by the Code com'missioners it contained a provision that the widow’s share should not be affected by her husband’s will “if within six months after his death she files in the clerk’s office a renunciation of all rights conferred on her.” This contemplated there should be a writing filed; it was not essential, however, that it should be otherwise made of record. The change made by the General Assembly under the circumstances appears significant as to the purpose and intent. The statute, as it now stands, does not make it essential there should be a writing signed by the widow. The essential thing is that such consent shall be evidenced by the record. Such consent may, without doubt, be orally expressed in open court and entered of record, the statutory thought being that where the widow so appears, and her consent is entered of record, she cannot afterward be permitted to contradict or impeach the record, and thus all doubt as to her rights and the rights of others will be at an end.
The guardian ad litem of the minor defendants pleaded, in connection with the defenses held insufficient, a general denial of the allegations of the petition. It is claimed the demurrer was to, and was sustained to, the whole answer. We do not so mderstand the record.
The demhrrer was sustained only as to the special defenses, and under the issue remaining the plaintiff introduced evidence and proved her case.
Affirmed.