Cain v. Cain, 23 Iowa 31

Cain v. Cain

23 Iowa 31 | Iowa | 1867

Cole, J.

l. will: . Sf dower.1 At the common law the right of dower was simply the use for life of one-third the' real • estate of which the husband was seized, during coverture. (4 Kent Com. 35.) Under our statute that right is absolute property in fee simple to such third part. (Laws of 1862, ch. 151, p. 173.)

As to whether the provisions of a will in favor of the wife were intended to be in lieu of dower, or in addition thereto, has been the occasion of frequent adjudications. The English rule (aside from statute) requires that the will shall expressly state the provisions to be in lieu of dower, or at least (as Lord Kenyon says), “it should appear that if she took both dower and the provisions imder the will, some other part of the testator’s disposition would be defeated; or (as Lord Alvanley says), ‘ it must appear that he meant, to bar her dower,, or that what she demands is repugnant to the disposition.’ ” How far *39this rule may have been modified by statute or judicial decisions in this country, we need not inquire; for, admitting it in its full force, 'this plaintiff is not entitled to dower in addition to the provisions of the will.

g,_^ im_ plication ofp" r,lle' The will directs the real estate to be sold; it could not be sold, if the widow by her dower light owned one-third in fee. If she had but the common law dower right, it could be sold subject thereto; not so, however, where that dower right is an absolute fee simple title to one-third. The claim, therefore, for dower under our statute, is repugnant to the disposition of the real estate as made by the will; and to allow the widow to take one-third in fee, would preclude the sale, and thereby “the testator’s disposition would be defeated.”

The case of Corriell v. Ham (2 Iowa, 552), and of Clark v. Griffith, (4 Id. 405), arose under the statute giving dower as at common law; they hold the English rule as herein recognized. "We have no occasion herein .to construe Revision, section 2435. “ The widow’s dower cannot be affected by any will of her husband if she objects thereto, and relinquishes all rights conferred upon her by the will.” .

Nor is it necessary for us to determine whether the District Court erred in rejecting the testimony offered by defendants to show the facts, circumstances and relations surrounding the testator at the time of the making of the will.

Reversed.