Campbell v. Sankey

114 Iowa 69 | Iowa | 1901

McClain, J.

Plaintiff and defendant are the sole heirs of their parents, both of whom are deceased. The will of the father, who died first, provided that the defendant should have the use of all his property, real and personal, for the purpose of maintaining his mother during the term of her natural life, and that after her death defendant should, out of the estate, pay a certain sum in annual installments to plaintiff; and the will concludes with the provision that “the remainder of all my property, consisting of-real and personal estate, I give and bequeath unto my son,” the defendant. Plaintiff claims that the provisions of the will for the benefit of her mother were not inconsistent with dower right, and that, as an heir of her mother, she is entitled to a share in her mother’s dower interest out of her father’s estate, and for that purpose she asks partition. Defendant’s contention is that the provision made in the wilt for the widow was inconsistent •with her dower right, and that, as she elected to take under the provisions of the will, she had; no other interest in the property, and that plaintiff is entitled to claim nothing through her. The question, then, is whether the provisions of the will in favor of Eleanor Sankey were inconsistent with her dower interest; and this question is to be determined under the law as it stood at the time of testator’s death, which was prior to the adoption of the present Code, section 3270 of which changes the law as to this matter. By a line of decisions based on the statutes as they stood prior to that change, a life estate in the widow was not inconsistent with her dower interest in fee. Parker v. Hayden, 84 Iowa, 494; Daugherty v. Daugherty, 69 Iowa, 677; Hunter v. Hunter, 95 Iowa, 728; In re Proctor’s Estate, 103 Iowa, 232; Rittgers v. Rittgers, 56 Iowa, 218. We think that even under these decisions the provisions of the will in question were inconsistent with and precluded any dower interest in the widow. The will is unambiguous to the effect that defendant was to have the use “of all the property of testator, real and personal, for the purpose of maintaining his mother, Eleanor Sankey, during the term of said Eleanor Sankey’s natural life;” and testator continues, “In any event, I wish my wife, the said Eleanor Sankey, to have support and maintenance out of said property, real and personal, during her said natural life.” These provisions indicate an understanding that the widow is to be entirely dependent for her support on the maintenance furnished by defendant, and the entire property is put into defendant’s hands during his mother’s lifetime, as the source from which this support is to be furnished. The use by defendant of the entire property for the purpose of furnishing this maintenance and support is inconsistent with a fee-simple estate in one-third of the property in favor of the widow. -A trust of the entire property is created in the son for the purpose of raising a fund for the widow’s support and use, and this is inconsistent, with a dower right in the same property. See Howard v. Smith, 78 Iowa, 73. As Eleanor Sankey did not, therefore, have a dower right in her husband’s property after accepting the provisions of the will in her behalf, appellant is not entitled to have any portion of the property set aside to her as heir of her mother. — Affirmed.