185 Iowa 183 | Iowa | 1919
The appellants expressly plant themselves upon the proposition that the trial court should have ruled that, by taking possession and use on the terms prescribed by the will, and by failing to exercise his right to sell with the consent of the other heirs, the son is in the position of the holder of a life estate, and no more, and that this life estate has been terminated by his death; and that therefrom it follows, not only that the devise of «$1,000 is of no effect, but that the proceeds should be divided equally between the heirs at law other than August; that, in some way, the son made an election that bars him from participating as an heir. We have already pointed out that such a position assumes, without warrant, the very question in issue: whether the testator intended that giving the use upon payment should exclude not only the payment Of the additional $1,000, but bar the right to participate as an heir. Without going into the question whether or not the son could not make an election because the right to sell the land for debt existed, we have to repeat that using the land on the terms of payment exacted by the will, and failing to initiate any sale upon consent of the co-heirs, could in no view destroy the standing of the son as an heir. • What we might hold if it were claimed here that, though the estate of August could participate as the representative of the heir August, but could not have the specific legacy of $1,000 because the conditions fixed by the will for vesting that have not arisen, it is unnecessary to discuss.- Such a contention, as said, is not made. No modification of the decree below
The dispute over whether the review here is de novo need not be settled, because it is an immaterial one. The sole question on the appeal is one of law; and such a question is determined by the same rule, whether it arise on the law or the equity side.
Other contentions and arguments are subsidiary, and are, in effect, disposed of by what we have said. In our judgment, the decree .below should be — Affirmed.